Full text of "The practice of the Privy Council in judicial matters in appeals from courts of civil, criminal, and admiralty jurisdiction and in appeals from ecclesiastical and prize courts, with the statutes, rules and forms of procedure (founded upon "Safford and Wheeler's Practice of the Privy Council in judicial matters.")"

See other formats

THE

PRACTICE OF THE PEIYY COUNCIL
IN JUDICIAL MATTERS

APPEALS FROM COURTS OF CIVIL, CRIMINAL AND
ADMIRALTY JURISDICTION

AND IN

APPEALS FROM ECCLESIASTICAL AND PRIZE COURTS

WITH THE

STATUTES, RULES AND FORMS OF PROCEDURE

(FOUXDED UPOX "SAFFORD AXD WHEELER'S PRACTICE OF
THE PRIVY COUNCIL IN JUDICIAL MATTERS:'}

NORMAN BENTWICH

OF LINCOLN'S INN, BARRISTER-AT-LAW

LONDON:

SWEET AXD MAXWELL, LIMITED,
3, CHANCERY LANE, W.C.

|?ah? i^nbiisfyrrs.
1912.

BRADBURY, AONEW, & CO. LD., PRINTERS,
LONDON AND TONBRIDGB.

HIS MAJESTY'S ATTORNEY-GENERAL,

THE KT. HON. SIR EUFUS DANIEL ISAACS,

K.C.V.O., K.C., M.P.,

WHO HAS PLAYED A LARGE PART IN GIVING EFFECT TO THE

PROPOSALS FOR ADDING FURTHER DIGNITY TO THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

THIS WORK ON THE PRACTICE OF THE

TRIBUNAL IS RESPECTFULLY

DEDICATED.

253463

PREFACE.

THE practice of the Privy Council in judicial
matters has been enormously simplified since the
publication of Messrs. Safford and Wheeler's compre-
hensive work on that subject in 1901. In the first
place, as the result, perhaps, of suggestions made by
the learned authors of that book, the rules of appeal
from the courts in most of the colonies, possessions
and foreign jurisdictions of the Crown have been
standardised, and now conform to a single model;
and secondly, the rules of the Judicial Committee itself
have been consolidated. Moreover, the jurisdiction of
the Privy Council in relation to the extension of
Letters Patent for inventions has been transferred to
the Chancery Courts; and the number of courts
from which appeals can be brought directly has been
reduced by the federation of the South African colonies
in the Union of South Africa, and the restriction of
the right of appeal to cases which have already gone
up to the appellate division of the Supreme Court
of the Union. In view of these reforms and changes
it has been found possible to reduce by more than half
" the big evil of a big book," and to replace the
elephantinus liber of Messrs. Safford and Wheeler by a
more concise treatise without, it is hoped, a loss of
comprehensiveness. The plan of the earlier work has
been followed to a certain extent ; but at the same time
very large modifications have been made, and the whole
book had to be rewritten.

The statutes bearing on the practice, largely reduced

Vi PREFACE.

in number, have been relegated to an appendix instead
of forming the first part of the treatise. The historical
account of the colonial courts with which Messrs.
Safford and Wheeler prefaced the rules of appeal for
each colony has been very greatly curtailed, but so as
to preserve in each case the record of the origin of
the jurisdiction of the King in Council. The rules of
appeal from the colonies, etc., which form Part I. are
now treated as a code, because this uniform scheme
applies generally except to the Channel Islands and the
Isle of Man, Quebec and Ontario, the Straits Settle-
ments, British India and Ceylon, which still have a
special practice of their own. In the case of these
colonies and possessions the regulations have been
dealt with separately; for the rest the special conditions
which apply in each case are noted under the name of
the dominion, colony or foreign jurisdiction concerned ;
and the general conditions which apply to all form the
subject of the chapter entitled " Colonial Appeal Eules."
Part II. of the book, which treats of the practice
before the Privy Council, is in large part a com-
mentary upon the new code of procedure known as
the Judicial Committee Kules, which was issued in
December, 1908. I have used a considerable part of
the material collected by Messrs. Safford and Wheeler,
but I have discarded^the references to a number of old
cases, and on the other hand I have dealt with all the
cases on the practice which have been reported since
1901. The simplification of the rules has rendered
possible a simplification of the treatment. In the
commentary I have not adhered to the order of the
rules as they are set out in the code ; but for
convenience of reference I have added the text of
the rules as issued in Appendix B. ; and I have also
added at the end of the book a table of steps to be taken
previous to the hearing of an appeal, which gives the
effect of the rules in a summary form.

PREFACE. Yll

Part III. of the book contains the practice in
Admiralty, Prize, and Ecclesiastical appeals, which has
been treated more briefly. As regards the two latter
classes of appeal I understand that proposals are being
considered for reforming the procedure before the Privy
Council with a view to assimilating it more completely
to the procedure in civil appeals. As, however, it is
uncertain when these proposals will become effective,
if at all, it seemed better not to delay the publication
of the book; and as very few ecclesiastical and
prize cases have been brought of recent years before
the Privy Council, the changes, if and when they are
made, will not be of great practical consequence.

The Appendices contain those material statutes
upon the practice and powers of the Judicial Com-
mittee which are not already set out in the main part
of the book, the Judicial Committee Eules, the Order
in Council regulating the right of agents to practise
before the Committee, a number of forms for use in
various proceedings in the appeal, and the table of
steps to be taken before hearing already mentioned.

The development of the Judicial Committee as the
supreme appellate tribunal has probably not yet reached
its final stage. At both the last Imperial Conferences
suggestions were made by the representatives of the
self-governing dominions for the formation of an
Imperial Court of Appeal which should combine the
functions of the House of Lords in its judicial capacity
and of the Judicial Committee of the Privy Council.
The Appellate Jurisdiction Bill which was introduced
by the Government last year, and which is likely to be
reintroduced this session, makes a striking advance
in this direction ; while the Home Rule Bill for Ire-
land, as introduced, proposes to give the Judicial Com-
mittee of the Privy Council the new Imperial function of
determining whether the laws passed by the proposed
Irish Parliament are within the powers of that body

Vlll PREFACE.

or not, besides substituting it for the House of Lords
as the final Court of Appeal for Irish cases (a).

In a federal British Empire the Sovereign in Council,
whatever form that jurisdiction may ultimately take,
will have functions more splendid even than those
exercised to-day by the Judicial Committee of the
Privy Council. Yet, as things are, that tribunal is the
final Court of Appeal for more than one quarter of the
population of the world ; already, to repeat the words
of my predecessors, " its jurisdiction is more extensive,
whether measured by area, population, variety of
nations, creeds, languages, laws or customs than that
hitherto enjoyed by any court known to civilisation."
The practice of this unique court has now been
ordered in a manner worthy of its dignity, and it is
hoped that this book may prove a reliable guide to it,
both for those who are professionally concerned in the
conduct of appeals and for those who are students of
jurisprudence.

In conclusion, I am under greater obligations than
I can well express to Mr. W. Eeeve Wallace, the Chief
Clerk of the Judicial Department of the Privy Council
Office, for the help he has given me in the preparation
of the book. Not only did he supply me with copies of
the Orders in Council regulating the practice and with
the forms contained in Appendix D., but he was at all
times ready to advise me out of his special experience,
and he has read the proofs and made many valuable
suggestions upon them. I have also to thank Mr. J. M.
Parikh, of the Middle Temple, Barrister-at-law, who has
read part of the proofs and given me the benefit of his
expert knowledge of the practice in Indian Appeals. As
to written sources of information, in addition to my great
debt to the work of Messrs. Safford and Wheeler I have

(a) The provisions of the Home Rule Bill dealing with the judicial
functions of the Privy Council in relation to Ireland are set out in
the Addenda.

PREFACE. IX

derived much help from Mr. A. B. Keith's book on
" Responsible Government in the Dominions " and
from his articles on the " Constitution of the Australian
Commonwealth," and on the " Constitution of the
Union of South Africa " which appeared in the Journal
of Comparative Legislation. Lastly, I have to acknow-
ledge the courtesy of the Controller of His Majesty's
Stationery Office in allowing me to embody in the
chapter on costs certain regulations which are con-
tained in a pamphlet on " Costs in the Privy Council,"
written by Mr. W. E. Wallace, which was published by
the Stationery Office last year.

NORMAN BENTWICH.

LINCOLN'S INN,

April, 1912.

THE SOVEKEIGN IN COUNCIL.

MEMBEES OF THE JUDICIAL COMMITTEE OF HIS
MAJESTY'S MOST HONOUEABLE PEIYY COUNCIL.

EIGHT HON. THE LORD CHANCELLOR (EARL LOREBURN).

EIGHT HON. THE EARL OF HALSBURY.

EIGHT HON. LORD ASHBOURNE.

EIGHT HON. LORD MACNAGHTEN, G.C.B., G.C.M.G.

EIGHT HON. LORD ATKINSON.

EIGHT HON. LORD GORELL.

EIGHT HON. LORD SHAW.

EIGHT HON. LORD MERSEY.

EIGHT HON. LORD EOBSON, G.C.M.G.

EIGHT HON. LORD DE VILLIERS, K.C.M.G.

EIGHT HON. VISCOUNT HALDANE.

EIGHT HON. LORD ALVERSTONE.

EIGHT HON. SIR SAMUEL J. WAY, BART.

EIGHT HON. SIR SAMUEL WALKER GRIFFITH, G.C.M.G.

EIGHT HON. SIR JOHN EDGE.

EIGHT HON. SIR EDMUND BARTON, G.C.M.G.

EIGHT HON. SIR CHARLES FITZPATRICK.

EIGHT HON. SYED AMEER ALI, C.I.E.

The Master of the Eolls, the Lords Justices of the Court of
Appeal of England, the Lord Chief Justice of Ireland, the Justices
of the High Court of Judicature of Ireland, the Lord President of
the Court of Session in Scotland and the other Judges of that
Court, as well as the late Judges of those Courts, who are Privy
Councillors, are also members of the Judicial Committee.

CONTENTS.

PAGS

PREFACE v

MEMBERS OF THE JUDICIAL COMMITTEE of His Majesty's Most

Honourable Privy Council x

TABLE OF CASES xv

ADDENDA xxxiii

REFERENCES TO KEPORTS xxxv

PART I.

CHAP.

I. The Constitution and Jurisdiction of the Privy Council . 1

II. Colonial Appeal Eules 21

III. Eules of Appeal for the Self -Governing Dominions, Colonies,

Possessions, and Foreign Jurisdictions .... 35

(1) The Dominion of Canada 38

Alberta 51

British Columbia 51

Manitoba 52

New Brunswick 52

Nova Scotia 53

Ontario 53

Prince Edward Island 57

Quebec 57

Saskatchewan 63

Newfoundland 64

(2) The Commonwealth of Australia 65

British New Guinea or Papua 74

New South Wales 75

New Zealand 75

Queensland 77

South Australia . . , 78

Tasmania 79

Victoria 80

Western Australia 81

Fiji Islands .82

Xll CONTENTS.

CHAP. PAOR

III. — Contin ued.

(3) The Union of South Africa 82

Basutoland 88

British Bechuanaland ....... 89

Swaziland .......... 90

(4) Other Parts of the British Dominions :

Jersey 91

Guernsey .......... 97

Isle of Man 100

Gibraltar 102

Malta 103

British Guiana 104

British Honduras 105

The Gold Coast and Ashanti 106

Hong Kong 107

Mauritius and the Seychelles 107

Sierra Leone 108

Southern Nigeria . . 109

St. Helena 110

The West Indies and The Bahamas 110

Barbados Ill

Bermuda 112

Jamaica (and Turk's and Caicos Islands) . . . .113

Leeward Islands 114

Trinidad and Tobago 114

Windward Islands 115

Grenada 116

St. Lucia 116

St. Vincent 117

(5) Foreign Jurisdiction :

A. Africa Protectorate 117

Northern Nigeria Protectorate 118

East Africa, Uganda, and Nyassaland Protectorates . 119
Northern and North Western Rhodesia . . .119

Somali Coast 120

Zanzibar 121

Morocco 121

B. Asia and Europe :

China 122

Federated Malay States 122

Muscat 123

Persia 123

Persian Coasts and Islands 124

Sarawak 124

Siam .... 125

CONTENTS. Xlll

CHAP. PAGE

UL— Continued.

Cyprus .125

The Ottoman Empire 126

C. The Pacific Islands 129

(6) The Straits Settlements 130

Brunei 136

IV. Rules of Appeal for British India and Ceylon . . .137

PART II.

CONDITIONS AND RULES OF APPEAL IN THE PRIVY
COUNCIL.

V. Appeal by Right of Grant 192

VI. Appeal by Special Leave 207

Petitions and Appeals in Forma Pauperis . . . 225

Criminal Appeals 228

Conditions attached to Special Leave .... 234
VII. Concerning Matters which are the subject of Special

Reference 239

Complaints with Reference to Judges .... 252

VIII. General Practice as to Petitions 257

IX. Steps before the Hearing — Transmission of Transcript —
Printing the Record — Appearance — Lodging Petition

of Appeal 262

X. Dismissal for Non -prosecution and Withdrawal of Appeals . 292

XI. Abatement and Revivor 305

XII. The Hearing of the Appeal 311

XHI. Costs 325

XIV. Concerning the Judgment of the Committee, and of the

Decree of the Sovereign in Council . . . .341

PART III.

THE PKACTICE IN APPEALS TO THE SOVEREIGN IN COUNCIL IN
ADMIRALTY, PRIZE COURT AND ECCLESIASTICAL MATTERS.

XV. Admiralty Appeals 362

XVI. Appeals from Prize Courts 372

Ecclesiastical and Maritime Rules of 1865 (with Schedule

of Forms) 374

XVII. Appeals from Ecclesiastical Courts 397

Reyulce Generates, 1876 407

Rules in Appeals from the Arches Court of Canterbury . 408
Rules in Appeals under the Public Worship Regulation

Act 409

Rules under the Clergy Discipline Act, 1892 . . .411

XIV CONTENTS.

APPENDICES.

APP. PAGE

A. Imperial Statutes dealing with the Jurisdiction and Practice of

the Judicial Committee 419

(1) 3 & 4 Will. IV. c. 41 (1833) 419

(2) 6 & 7 Viet. c. 38 (1843) 430

(3) 7 & 8 Viet. c. 69 (1844) 436

(4) 16 & 17 Viet. c. 85 (1853) .440

B. The Judicial Committee Eules, 1908 ... .442

C. Agents' Declaration .468

D. Forms of Petitions 470

E. Time-table of Steps to be taken in Appeals . . . 476

F. Specimen of Index of Record .... . 478

INDEX 481

TABLE OF CASES.

PAO«

ADAM, In re (1837) 246

Adams v. Young (1899) 338

Aga Kurboolie Mahomed v. Reg. (1843) 156

Ahier t>. Westaway (1855) 307

Alade v. Reg 231

Aldred, Ex parte 102

Aldridge v. Cato (1872) 319

Alice & Princess Alice, The (1868) 348

Allan r. Pratt (1887) 63

v. (1888) 59, 198, 214

Allcock v. Hall (1891) 351

Allen v. Quebec Warehouse Co. (1886) 347

Ambard v. Trinidad Asphalt Co. (1898) 279

Amfc-ique, The (1874) 350

Ameroonissa Khatoon v. Dunne (1870) 203, 316

Ames, In re (1841) 93, 95, 97

Angus v. Cowen (1883) 79

Annundomoyee Chowdrain r. Sheab Chunder Roy (1862) .... 208
Antigua, In r* The Justices of the Common Pleas of (1829) . . .196

Apap r. Strickland (1881) 359

Appa Rao, In re (1886) 358, 359

Aquila, The (1847) 369

Arbuthnot v. Norton (1846) 335

Archambault v. Archambault 316, 318

Attenborough r. Kemp (1861) 200, 337

Att.-Gen. v. Gibbon (1887) 77

v. Municipal Council of Sydney (1892) 202

v. Sillem (1864) 194

for Dominion of Canada r. Att.-Gen. for Ontario (1897) . . 56

for Dominion of Canada v. Fedorenko 50

for Dominion of Canada r. Att.-Gen. for Ontario (1898) . 56, 337

of British Columbia v. Att.-Gen. of Canada (1889) . . 37, 216

of Honduras v. Bristowe 105

of Jamaica r. Manderson 224, 237

of Jersey v. Capelain (1842) 218

of Jersey r. Le Moignan (1892) 289

of Man r. Cowley (1859) 235, 237

of Man r. Mylchreest 204

of Manitoba r. M. (1901) 237

TABLE OF CASES.

PAGE

Att.-Gen. of Newfoundland v. Cuddily (1836) 319

for N. S. W. v. Collector of Customs 72

of N. S. W. v. Macpherson (1870) 219, 237

of Nova Scotia v. Gregory (1886) 42, 212

of Ontario v. Att.-Gen. of Dominion and Distillers and Brewers'

Association (1896) 45, 217

of Ontario v. Hamilton Street Railway 217

of Victoria, In re (1866) . ... 204, 218, 238

Australasian Steam Navigation Co. v. Smith (1889) 343

Australian Gold Recovery Co., Ld. v. Lake View Consols (1900) . . 314

BABOO GOPAL LALL THAKOOR v. Teluk Chunder Rai (1860) . . 199, 218

Kasi Persad Narain v. Mussumat Kawalbasi Kooer (1851) . . 320

- Puhlwan Singh v. Maharajah Buhah Singh (1871) . . . .317

Badger v. Att.-Gen. for New Zealand 232

Bahadar Singh, He (1901) 312, 358

Bamundoss Mookerjea r. Omeish Chunder Raee (1856) .... 339

Banarsi Parshad v. Kashi Krishu Narain (1900) 157

Bank of Australasia v. Breillat (1847) . ...... 215,351

„. Harris (1861) 201

Bank of Bengal v. Fagan (1849) 317

v. McLeod (1849) 317

Bank of China, &c. v. The American Trading Co. (1894) . . . .289

Bank of New Brunswick v. McLeod (1882) 209

Bank of New South Wales v. Owston (1879) 199

Barlow v. Orde (1872) 163, 354

Barnett, In re (1844) 224

Barton v. Field (1843) 354, 376

v. The Queen (1840) 376

Batten v. The Queen (1857) . . 332

Baudains v. The Jersey Banking Co. (1888) . . . .93, 94, 208, 299, 300

Baxter v. Commissioners of Taxes 70

Beardman v. City of Toronto 54

Beaudry v. Mayor, £c., of Montreal (1858) 334, 369

Beaumont's Case (1866) 256

Bedard, He (1849) 248

Belson, In re (1850) 196, 248

v. Belson (1849) .92

Bengal Government v. Mussumat Shurrufutoonnissa (1860) . . .313

Beningfield v. Baxter (1886) . . . 315

Bishop of Natal, In re (1864) 247, 406

Bishop v. Wildbore (1855) 227

Bisshenmun Singh r. Land Mortgage Bank of India (1884) . . . 338

Blake v. Bogle (1838) 306

Blue and Deschamps v. Red Mountain Railway .... 289, 322, 345

Boardman v. Quayle (1857) 332

Bombay Burma Trading Corp. v. Mirza Mahomed Ally Sherazee (1878) . 334

TABLE OF CASES. XV11

PAGE

Bombay Supreme Court, In re (1829) 247

Borough of Band wick r. Australian Cities Investment Co. (1833) . .317

Boston v. Lelievre (1870) 351

Boswell v. Kilborn (1859) 59, 61

r. (1860) 235

Bow McLachlan <fc Co. v. SS. Carnarvon 367

Bowerbank i\ Bishop of Jamaica (1839) 247

Bowie r. Marquis of Ailsa (1887) 2:>7

Boynton r. Boynton (1879) 310

Bray v. Ford (1896) 335, 343

Brerner v. Freeman (1857) 335

Brewster r. Lamb (1880) 59

Brinhilda, The (1881) 364

Brook v. Bloomfield (1874) 58

Brophy v. Att.-Gen. of Manitoba (1895) 45

Brouard r. Dumaresque (1841) 226

r. (1848) 226

Brown v. Davenport (1857) 369, 395

- r. Gugy (1863) 271

- r. McLaughan (187u) 209, 214

Brownlow i: Garson (1843) 304, 377

Budri Xarain v. Mussumat Sheo Koer (1889) .... . 339

Bulkeley v. Scutz (1870) 211, 298

Bunting v. Hibbard (1865) • . .60

Burjore v. Bhagana (1883) ... 159

Burland v. Earle 361

Burrard Power Co. r. Reg 47

Bute (Marchioness) r. Mason (1849) 305, 306

Butts, In re (1842) 312

CALDWELL r. McLaren (1883) 216

Calgary Rail. Co. v. Reg .47

Cambernon v. Egroignard (1830) . . 204

Cameron v. Fraser (1842) 324

— r. Kyte (1835) 307

Campbell v. Dent (1838) 284

r. Hall (1774) 38

Canada Central Rail. r. Murray (1883) 208, 209

Canadian Pacific Rail. Co. i: Toronto Corporation, &c. (1911) . 36, 46. 50, 54

r. Blaine 47

Canepa v. Larios (1834) 289

Cape Breton Case (1846) 53, 244

Carew, JKr^arfe (1897) 228

Carr v. Hinton (1787) 307

Carrier Dove, The (1863) " 350

Carter r. Molson (1883) 59

Casement v. Fulton (1845) 369

P.C. b

XV111 TABLE OF CASES.

PAGE

Casi Persad Narain v. Kawa Besi Kooer 271

Cassanova v. Beg. (1866) 364

Cassim Ahmed Jerva v. Narain Chetty 280

Castrique v. Buttigieg (1855) 219

Chang Hang Kiu v. Piggott 231

Chastey v. Ackland (1897) 303

Chetah, The (1868) . .350

Cheyt Earn v. Chowdhree Nowbut Ram (1858) 347

Chichester v. Donegal (1822) 368

Chotayloll v. Manickchund (1856) 332

Chowdry v. Mullick (1837) 297

Christian v. Coren (1716) 101

Chunder Monee Debia Chowdhoorayn v. Munmoheenee Debia (1861) . . 347
Chuoturya Bun Murdun Syn v. Sahab Pimhulad Syn (1857) . . . 343

Churchward v. Palmer (1856) 334

Churchwardens of St. George, Jamaica v. May (1858) 218

Chutraput Singh Doorga v. Dwarkanath Ghose and Another . . .162

Cite de Montreal v. Seminaire de St. Sulpice (1889) 201)

City of Montreal v. Devlin (1878) 5!)

City of Toronto v. Toronto Electric Co 54

Clarisse, The (1856) 350, 362

Clergue v. Murray 46

Clifton, The (1835) 369-

Cloete v. Beg. (1854) 254, 337

Clouston & Co. v. Corry . 344

Colby v. Watson (1848) 289

Colchester School Case (1898) . . . . - 251

Colonial Bank v. Warden (1846) 213, 285

Colonial Sugar Co. v. Irving 69

Commissioners for Bailways v. Brown (1887 343, 346

— of , jgffjpgrfe (1899) 317

- Taxation v. Antill 333

Connecticut Fire Insurance Co. v. Kavanagh (1892) 317

Mutual Life Insurance Co. of Hartford v. Moore (1881) . . 346

Consumers' Cordage Co. v. Conolly (1901) 47

Corporation of Adelaide v. White (1886) 318

— Canterbury v. Wy burn (1895) 315

— St. John's v. The Central Vermont Bailway (1889) . 216, 315
Council of the Municipality of Brisbane v. Martin (1894) . . . .343

Count de Wall's Case (1848) 245

Court of Wards v. Bajah Lulanund Singh (1871) 151

Cowie v. Bemfry (1846) 341

Cox v. Hakes (1890) 351

v. English, &c., Bank (1905) 346

Craig v. Farnall (1849) 289

v. Shand (1830) . 204,235

Credit Foncier of Mauritius r. Paturau (1876) 200

Cremidi v. Parker (1857) 210, 299, 368

TABLE OF CASES. XIX

PAGE

Croker r. Marquis of Hertford (1844) 335

Cromie, In re (1894) 81

Croudace v. Zobel 195

Crown Grain Co. v. Day 40

Cashing r. Dupuy (1880) 36, 58, 60

Cuvillier r. Aylwin (1832) 58, 298

DAGNINO r. Bellotti (1886) 195, 196

Daily Telegraph Co. r. McLaughlin 73

D'Allain r. Le Breton (1857) 95, 240, 247

Deakin v. Webb 69, 70

Dean of Jersey v. Rector of (1840) 306, 400

De Bay, The 350

De Jager v. Att.-Gen. of Natal 219, 232

Deeming, Ex part e (1892) 230

Demarai Singh i: Gani Singh 158

De Souza, In re (1888) 218, 234

Develin v. Waihi-Silverton Gold Mining Co. (1897) 77

Devine r. Holloway (1861) 321

r. Wilson (1855) 335, 342

Dhaundari Singh r. Singh 317

Dillett, In re (1885) 36 227

Dimes r. Dimes (1856) 335

Dinizulu v. Att.-Gen. of Zululand (1889) 231

Dominion of Canada r. Province of Ontario 46, 355

Donegani v. Donegani (1835) 246, 271, 321

Doorga Doss Chowdry v. Ramanauth Chowdry (1860) .... 202

D'Orliac v. D'Orliac (1844) 108, 215, 219

Douglas v. Smith and Brown (1833) 405

Downie and Arrindell, In re (1841) 256, 285. 313

Dumoulin r. Langtry (1887) 208, 209, 216

Dunne v. Ameroonissa Khatoon (1870) 203

EAST INDIA Co. r. Oditchurn Paul (1849) 345

r. Syed Ally (1827) 220

Ell, In re. Ex parte Austin (1886) 77

Elphinstone v. Purchas (1870) 307

Emerson v. Judges of Newfoundland (1854) .... 230, 247, 256

Emery c. Binns (1850) 219

Ermatinger r. Gugy (1844) 307

Esnouf r. Att.-Gen. of Jersey (1883) 921

Ettershank v. Zeal and Johnston (1884) 296

Evans r. Wood (1901) 403

FALCK r. Williams (1900) 315

Falkingham r. Victorian Railway Commissioners (1900) .... 315

Falkland Islands r. The Queen (1863) 36, 229, 289

Falkner's Gold Mining Co. v. M'Kinney 201

b 2

XX TABLE OF CASES.

PAOK

Fazul-un-nissa Begam v. Mulo (1884) 15!)

Feda Hossein, In re (1876) 152

Fenton v. Hampton (1858) 358

Fischer v. Kamala Naicker (1860) 334

Flint v. Walker (1847) 215

— v. Wells 71. 72

Flood v. Egan (1899) 310

Forbes v. Ameeroonissa Begum (1865) 324

v. Meer Mahomed Hossein (1873) 316

Franck v. Stead (1881) 77

Frankland v. M'Gusty (1830) 315, 319

Frith v. Frith 213

Fryer v. Bernard (1724) G

Funds of Dulwich College (1876) 252

GAHAN v. Lafitte (1842) 315, 334, 349

Gajadhur Pershad v. Widows of Emam Ali Beg (1875) .... 149

Gangadhar Tilak v. Queen Empress (1897) 156. 230

Garden Gully United Quartz Co. v. McLister (1875) 318

Gardiner v. McCulloch (1876) 200, 202

Gaudin v. Messervy (1864) 227

General Iron Screw Co. v. Moss 333

George Emery Co. v. Wells 344

Ghamandi Lai v. Amir Begam (1894) 306

Ghoolan Moortoozah Khan v. Government of Madras (1863) . . . 347

Giles v. Wooldridge (1879) 291

Gillr. Westlake 100

Gillett v. Lumsden 54, 205

Gipps v. Messer (1891) 315

Gobindchunder Sein v. Kyan (1861) 307

Godfrey v. Constables of Sark 98

Golam Ali v. Kalykista Thakoor (1872) 152, 213, 324

Goldring v. La Banque D'Hochelaga (1880) . . . . - . 58, 59, 195

Gooroochurn Sein v. Eadanauth Sein (1857) 308, 336

Gooroopersad Khoond v. Juggutchunder (1860) 155, 199

Gopal Lai Thakoor, Ex parte (1860) 285

Gopeekrist Gosain r. Gungapersand Gosain (1854) 343

Goree Monee Dossee v. Juggut Indro Narain Chowdry (1866) . 159, 208, 209

Gorham Case (1852) 341

Gould, Re (1838) 95, 316

Gour Monee Debia v. Khajah Abdool Gunnee (1864) 296

Graham v. Berry (1865) 234

Grant v. Etna Insurance Co. (1862) 351

Gray v. Manitoba N. W. Rail. Co. (1897) 316

Gregg v. Gregg (1824) 375

Gregory, Ex parte (1901) 219

Grieve v. Tasker 299

TABLE OF CASES. XXI

PACK

Gt. Western Railway of Canada r. Braid (1863) 200, 345

Gungadhur Seal r. Sreemutty Raddamoney Dossee (1855) . . 160, 276, 279
Gungowa Rome Malupa r. Erawa Kome Jogapa (1870) . . . 155, 214
Gurra Prosunno Lahiri r. Jotuudra Mohun Labiri .... 151

HAMBURG-AMERICA Co. r. Reg 47

Hamilton, Re (1893) 308

Hansraj r. Sudar Lai 142

Haro Soonduree Debia r. Stevenson (1866) 203

Harrison v. Harrison (1842) 289, 405

r. gcott (1846) 223

r. The Queen (1856) 356

Harriss r. Brown (1901) 352

Harvey r. Owners of SS. Euxine (1871) 378

Hay r. Gordon (1872) 349

Head r. Saunders (1842) 316, 342, 405

Hebbert v. Purchas (1872) 354, 359, 377

Hemchand Devchand v. Azam 142,242

Henderson v. At wood (1893) 285

- r. Henderson (1843) 215, 237

Henfrey v. Henfrey (1842) 313

Herbert r. Herbert (1817) 375

Hiddingh r. Denyssen (1886) 285

Hikmat r. Wali-un-nissa (1889) 151

Hill v. The Queen (1854) 211,319

Hitch ings r. Wood (1838) 376

Hitchins r. Hollingsworth (1852) 237

v. Secretary of State for India 140

Hocquard r. The Queen (1857) 289, 314, 376

Hodges v. Sims (1835) 315

Hodgson's School (1878) 252

Hoskyn v. Druid Syndicate (1893) 297

House v. Stamp (1728) 305

How v. Kirchner (1857) 279

Hughes r. Porral (1842) 234, 289

Hulm v. Hulm (1843) " 204, 215

Humphrey r. Nowland (1862) 333, 346

Hunter v. SS. Hesketh (1891) 369

Hurrish Chunder Chowdry v. Kali Sundari Debia (1882) . . . 164, 353

Hutchinson v. Gillespie (1856) 339

Hydroos, The (1851) 369

IXGLIS r. De Barnard (1841) ... ... 223, 224, 322

r. Mansfield (1835) .200

JACKSON r. Prothero (1842) 297

XX11 TABLE OF CASES.

Jagarneth Pershad i\ Hanuman Pershad 152, 153

Jawahir Lai v. Narain Das (1878) 149, 289

Jefferys v. Boosey (1854) 37

Jenkins v. Cook (1876) 408

Jennett v. Bishopp (1683) 5

Jenoure v. Delmege (1891) 333, 343

Jephson v. Riera (1835) . 323

Jersey Bar, The (1859) 243

Jurat, In re (1866) 243

— Prison Board Case (1894) 242

Jeswunt Sing-jee Ubby Sing-jee v. Jet Sing-jee Ubby Sing-jee (1844) . 324
Johnson v. Lindsay (1892) 336

- v. Regem 337

- v. Voight (1896) 203, 214

Jones v. Guyon (1866) 63

— r. _ — (1867) 63

Joogulkishore v. Jotendro Mohum Tagore (1882) 151

Jotindra Nath Chowdhrey v. Prasanna Kumar Bahadur . . . .159
Joykissen Mookerjea v. Collector of East Burdwan (1860) .... 218

Juggernath Sahoo v. Judoo Roy Singh (1879) 163

Julia, The (1860) 348

Juveer Bhaee v. Vuruj Bhaee (1844) 323

KALEEPERSHAD TEWANEE v. Lalla Binda Lall (1869) . . . .315

Kalka Singh v. Paras Ram (1894) 151

Kangasayi v. Mahalashmamma 159

Kanimbrick v. Mayor of Hawthorn 202

Karsondas Dharansey v. Gangarai 150

Karuppanai Servai v. Srinivasai Chetti 153,197

Kennedy v. Purcell (1888) 60, 311

Kensington, Ex parte (1863) 208,221

Kent v. La Communaute' de Soeurs 316

Kerokoose v. Brooks (1860) 219

Kidney v. Melbourne Co 199

Kielley v. Carson (1842) . .358

King v. Henderson (1898) 37, 343

— (The) v. Inhabitants of Oxford (1811) 232

Kingston Race Stand v. Mayor and Council of Kingston (1897) . . . 343

Kirby v. The Scindia (1866) 289

Kirkland v. Modee Pestonjee Khoorsedjee (1843) . . . 140, 237, 351

Kishen Dutt Misr v. Tameswar Parshad (1879) 227

Kishen Pershad Panday v. Tiluckdhari Lall (1890) .... 159, 194

Kistonauth Roy, Ex parte (1869) 264,313,356

Ko Rhine v. Snadden (1868) 213, 218

Kops, Ex parte (l^^) 230

Kripamoye Debia v. Romanath Chowdry (1861) 347

Kunwar Sanwal Singh v. Rani Kunwar 152, 347

TABLE OF CASES. XX111

PACK

LA BANQUE D'HOCHELAOA r. Murray (1890) .

Labouchere r. Tapper (1857) 332

Lachman Singh r. Mussumat Puna (1889) 152

La Cloche r. La Cloche (1872) 307

Laing v. Ingham (1839) 204,221

Lalla Bunseedhur r. Bindeseree Dutt Singh (1866) 332

Lalta Pershad and Others r. Sheikh Azzir-ud-din Ahmid (1896) . . 352

Lanux r. de la Giroday (1891) 296

Lapraik r. Burrows (1859) 376

Laura, The (1865) 289

Law r. Campbell (1827) 376

Lawson v. Carr (1856) 316, 321

Le Breton v. Ennis (1844) 342

Ledgard v. Bull (1886) 310

Lee c. Atherton 401

Le Feuvre i: Le Feuvre (1837) 92

- v. Sullivan (1855) 342

Le Gros r. Le Breton (1833) 95,342

Le Mesurier r. Le Mesurier (1894) 215

Le Meunier o. Le Meunier (1894) 215

Lemm -e. Mitchell 215

Lequesne r. Nicolle (1830) 322

Levien, In re (1855) 114

v. The Queen (1867) 231

Lewin r. Killey (1888) 100

Liddell r. Beal (1860) 307, 379

Lindo v. Barrett (1856) 331, 358

i-. Rex (1836) 368

Lindsay r. Duff (1862) 355

Lloyd r. Poole (1831) 375

Logan -p. Burslem (1842) 364

Long r. Commissioners for Claims on France (1832) 315

Lord r. The Commissioners of Sydney (1859) 335

Lord Warden v. Rex (1831) 362

Loughnan c. Bhulladina (1851) . . . . . . .211,336

Lubeck, In re 143

Luchmun Persad Singh v. Kishem Persad Singh (1882) . . . .163

Luft Ali Khan r. Asgur Reza (1890) 159

Lukhi Xarain Jagadeb v. Maharajah Jodu Nath Deo (1893) . . . 153
Lyall i\ Jardine (1870) 208, 210, 318, 338

MACDONALD r. Belcher 195

Macfarlane v. Leclaire (1862) 60, 151, 198, 298

Mackay v. Commercial Bank of New Brunswick (1874) .... 344

Mackie r. Herbertson (1884) 228

Mackonochie v. Lord Penzance (1881) 354,379

Macleary c. Hill (1868) 356

Macmillan r. Grand Trunk Rail. Co. of Canada (1889) . . . .216

XXIV TABLE OF CASES.

PAGE

Macrae, In re (1893) 156, 230

— v. Goodman (1846) 342

Maharajah Deraj Rajah Mahatao Chund Bahadoor v. Government of

Bengal (1850) 811)

- Ishuree Persand Narain Singh r. Lai Chutterput Singh (1842) 314

- Kuma Baboo Ganeswar Sing v. Durga Dutt (1871) . . 347, 348
Madawa Singh v. Secretary of State for India . . . .142

- Moheshur Sing v. The Bengal Government (1859) . . . 342

— Nitrasur Singh v. Baboo Loll Singh (1860) . . . .342

- Pertab Narain Singh r. Maharanee Subhao Koer (1878) . 352, 356
Sir Luchmeswar Singh Bahadoor v. Sheik Manowar Hossein

(1891) 152

— Sutteeschunder Roy r. Guneschunder (1860) . . . .213
Maharani Indar Kemwar v. Maharain Jaipal Kumari (1886) . . . 2S5

Mahideen Hadjiar v. Pitchey (1893) 152

Mair v. Stark (1888) 234

Makin r. A.-G. for N. S. W. (1893) 230

Manley v. Palache (1894) 151,343

Manning's Case (1840) 255

Marais, Ex parte 224

Marois, Louis, In re 36

v. Allaire (1862) 57

Martin r. Mackonochie (1870) 376, 406

Mason v. Att.-Gen. of Jamaica 271, 332

Master and Owners of SS. Baku r. Master, &c. of SS. Angele (1904) . . 350

Maxwell r. Deare (1853) 334

Mayor, &c. of Montreal v. Brown (1876) 61,194

McArthur v. Cornwall (1892) 351

— v. Dominion Cartridge Co. (1905) 346

McCarthy r. Judah (1858) 271, 322

McDermott, Ex parte 251

r. British Guiana Justices 234

McDonald r. Belcher 321

McKay v. Commercial Bank of New Brunswick (1874) . . . .317

McKellar v. Wallace (1853) 209,221,298,326

M'Kensie r. British Linen Co. (1881) 228

McLeod v. Att.-Gen. of N. S. Wales (1891) 27

v. St. Aubyn (1899) 117,255,313,336

McMaster r. Radford (1894) 399

McMillan v. Davies (1894) 297

M'Turk v. Douglas (1849) 303

Meiklejohn v. Att.-Gen. Lower Canada (1834) 289

Melbourne Tramway v. Fitzroy (1901) 338

Mellin r. Mellin (1838) 289

Metropolitan Railway v. Jackson (1877) 345

Metropolitan Rail. Co. v. Wright (1886) 346

Mgomini, Ex parte 225

Mills v. Modee Pestonjee Koorsedje (1838) 319

TABLE OF CASES. XXV

PAGE

Milson v. Carter (1893) 196, 219, 254

Minchin, In re 29ft

Mitchell r. New Zealand Loan Co 226

•:• Kaikhooesrow Hormusjee v. Cooverbhaee (185G) . . . . 155
Modhoo Soodun Sundial r. Suroop Chunder Sirkar Chowdry (1849) . . 348

Moeander, The (1862) 222

Mohesh Chandra Dhal r. Satrughan Dhal (1899) 155, 23d

Mohideen Hadjiar r. Pitchey (1893) 197

Mohummud Zakoor Ali Khan r. Massumat Thakooranee Rutta Koer (1867) 316

Mohul Chaudrahal r. Satrughan Dhal 162

Mohun Lall Sookul i\ Bebee Doss (1860) 201, 299

Mohur Sing -v. Ghuriba (1870) 345

Monckton, In re (1837) 230, 25ft

Montagu r. Lt.-Governor of Van Dieman's Land (1849) .... 254

Montaignac v. Shitta (1890) 23ft

Montreal Assurance Co. r. McGillivray (1859) 355

Moofti Mohummud Ubdoollah r. Baboo Mootechund (1837) . 158, 199, 285
Moonshee Ameer Ali r. Maharanee Interject Singh (1871) .... 300

an v. Leech (1841) 195, 219, 254

Moses r. Parker (1896) 212

r. Parker 36, 80

Moti Chand >: Gange Pershad Singh 151, 154

Moulvi Mohammed Huq r. Wilkie 199

Moulvie Abdool Ali r. Mozuffer Hossein Chowdry (1871) .... 320
Moulvie Sayyud Uzhur Ali v. Mussumat Bebee Fatima (1869) . . 152, 348-

Moung Tha Hnyeen r. Moung Pan Nyo (1900) 152, 348

Mowbray r. Drew (1893) 348

Muddu Mohun Dos v. Mothura Pershad (1896) 314

Mudhem Mohun Doss r. Gokul Doss (1866) 332, 342

Muir, In re (1839) 255

Municipal District of Gundagai r. Norton (1894) 202

Municipal Officer of Aden r. Hajee Ismael 140

v. Abdul Karim 150

Murtunjoy Chukerbutty r. Cochrane (1865) 335

Mushadee Mohamed Cazum Sherazee, In re (1852) 221

Mussoorie Bank r. Raynor (1882) 208, 299. 336

Mussumat Ameena Khatoor r. Radhabenod Misser (1859) . . . 146, 201
Babee Bacheen r. Sheik Hamid Hossein (1871) . . . .349

Imam Bancli r. Hurgovind Ghose (1848) 319-

Jarint-ool-Butool r. Mussumat Hoseinee Begum (1865) . . 203

Keemee Baee r. Latchman-Das Narrain-Das (1837) . 200, 201. 337

Khoor Konwur r. Baboo Moodnarain Singh (1861) . . . 322

Kripomoye Debia r. Genia Geuschunder Lahore (1861) . . 347

Ranee Surno Moyee v. Shooshee Mokhee Burmonia . . . 359

Shyam Komadi v. Rajah Ramenwar Singh (1900) . . . l.">!>

Muthu Bommaya c. Nainappa Chetty 238

Mutusawmy Jagavera Yettapa Naiker v. Vencataswara (1865) . 155, 213, 323
Myna Boyee v. Ootteram (1861) 151, 279

XXVI TABLE OF CASES.

PAGE

NANA NARAIN RAO v. Hurree Punt Bhao (1856) .... 222, 279

. r. Huree Punth Brao (1862) 335

Naragunty Lutchmeedanamah r. Vengama Naidoo (1861) .... 347
Nathoobhoy Ramdass r. Mooljee Madowdass and Others (1810) . . . 196

Nath Roy Bahal r. Secretary of State 153

Navivahoo r. Turner (1889) 324

Nawab of Surat, In re (1854) 142, 241

Nawab Sidhee Nuzur Ally Khan r. Rajah Oojoodhyaram Khan (1865) . 236

Needham v. Simpson (1831) 332

Nelson r. Rex 102

Nevell v. Fine Art and General Insurance Co. (1897) 343

New Zealand Midland Rail. Co., In re, Ex parte Coates (1899) . . . 77
Newton r. Judges of High Court of N. W. Provinces (1871) . . . 332

NgaHoongr. The Queen (1857) 233

Nicolle, Petn. and Doleance of 95

Nilmadhub Doss r. Bishumber Doss (1869) 200, 300, 319

Nityamasi Dasi r. Madhu Sudan Sen 236

North Australia Territory Co. r. Goldsborough (1890) . . . .210
North Sydney Investment and Tramway Co. v. Higgins (1899) . . .334

OMANATH CHOWDBT r. Sheikh Nujeeb Chowdry (1861) . . . .279

Orient, The (1871) 200

Oriental Bank Corporation r. Wright (1880) 315

Orphan Board r. Kraegelius (1855) 317

- r. Van Reenan (1829) 197, 307

O'Shanassy v. Joachim (1876) 337

PACAUD v. Roy (1866) 60

Paddington r. Sidgwick 277, 399

Palgrave Co. *?. Macmillan (1892) 213

Param Sukh r. Ram Dayal (1886) 164

Pattabhiramia v. Vencatarow Naicken (1870) 332

Pauliem Valoo Chetty v. Pauliem Sooryah Chetty (1877) . . . .349

Peacock v. Byjnauth (1891) 338

Pearson v. Russell (1889) 81

Pental Island, Case of (1872) 244

Petition of F. W. Quarry (1869) 220

Phillips 0. Martin (1890) 343

Pisani <o. Att.-Gen. of Gibraltar (1874) 206, 297, 369

Pitts v. La Fontaine (1881) 353, 355, 356

Pleiades, The (1891) 317

Pollard, Re (1868) -248

v. Harragin (1891) 227

Ponnamma v. Arumogam 205, 226, 316, 317

Poole •». Bishop of London (1861) 375

Powell v. Washburn (1838) 204, 296, 306

Prince v. Gagnon (1882) 46, 209

Prinsep and East India Co. r. Dyce Sombre (1856) .... 284,338

TABLE OF CASES. XXV11

PAOE

QUARRY, Re 217, 220

Quebec Fire Insurance Co. r. Anderson 59, 299

Queensland Money Bills Case (1886) 78, 243

Queen, The, v. Belcher (1849) 324, 368

r. Eduljee Byramjee (1846) 156

r. Joykissen Mookerjee (1862) 229

>-. J. Diaz (1849) 368

r. Price (1854) 217

Quinlan r. Child (Windward Is.) (11»00)

r. Quinlan 20.1, 211, 227

KADHA KRISHU DAS c. Rai Krishu Chand (1901) 157

Rahimbhoy Habibbhoy r. Turner 150,155,213

Rainey r. Bravo (1872) 333

r. Sierra Leone Justices (1853)' 234.248

Raja Yarlagadda Case (1900) 338

- Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1900) . . 150, 164

— Sutti Chum Ghosal r. Sri Mudden Kishore Indoo (1850) . . .303
Rajah Amir Hassan Khan r. Sheo Baksh Singh (1884) . . . .152

- Burdakauth Roy v. Aluk Mumjoree Dasiah (1848) . . . .351

- Deedar Hossein v. Ranee Zuhoorunissa (1841) . . . .297

- Lalanund Singh v. Maharajah Lakahmissar Singh (1870) . 154. HJ4

of Pittapur v. Sri Rajah Row Sittayya (1884) 338

— Perladh Sein r. Baboo Bhoodoo Singh (1864) 210

- Row Vencata Niladoy Ras p. Enoogoonty Sooriah (1834). . . 318
Tasedduq Rasul Khan r. Manik Chand 157

Vassareddy Lutchmeputty Naidoo, In re (1852) .... 354

Rajendro Nath Mukerji 150. 221

Raj under Narain Rae r. Bijai Govind Sing (1836) .... 200, 356
Ramchunder Dutt v. Chunder Coomar Mundul (1869) . . . .152
Ram Coomar Ghose v. Prusunno Coomar Sanuyal (1883) .... 159

— Gopal r. Shamskaton (1892) 153

- Gopal Roy v. Gordon Stuart (1872) 347

- Lai r. Saiyid Medhi Husain (1890) 347, 349

Xarain Joshi r. Parmeswar Mahta 222

Narain Singh r. Chowdrey Hanuman Sahai 152

- Sabuk Bose r. Monmohini Dossee (1874) 299, 336

Ramratan Sukal r. Mussumat Xandu (1891) 152

Ramsay, In re (1870) 248, 335

Ranee Birjobuttee r. Sing (1860) 238, 298

Bistoopria Patmadaye r. Nund Dhul (1870) 300

Sumomoyee r. Maharajah Sutteeschunder Roy Bahadoor(1864) 32 L

— Surut Soondree Debea v. Baboo Prosonno Coomar Tagore . .214

r. Kooer Poreshnarain Roy (1871) . . 348

Rani Hemanta r. Kumari Debi Brojendra Kishore (1890) .... 152

Srinati r. Khajindra Xarain Singh 153

Ravemea Chitty's Case (1883) 359

XXV111 TABLE OF CASES.

PAGU.

Bead, Ex parte (1888) 399

r. Archbishop of Canterbury (1888) 397

- r. Bishop of Lincoln (1892) 355, 397

Reed v. Dabee (1857) 23&

Beg. r. Alloo Paroo (1847) 37, 229

v. Bertrand (1867) 75, 193, 229

v. Byramjee (1846) 37,193,233

r. Coote (1873) 230'

r. Demers (1900) ' 5$

- v. Murphy (1868) 232

- r. Murphy (1869) 232

— v. Pestanji 156-

r. Scaife (1851) 232

v. Winsor - 232

Bepresentatives of Grenada r. Sanderson (18-47) 253

Betemeyer v. Obermuller (1837) 194, 284

Bex v. Aldred (1901) 102"

r. Louw 27

- v. Marais (1901) 233

v. Sekgome 90

— v. Walker 49

Bicardo Smidt, The 364

Eichards v. Birley (1864) 200, 387

Bichardson v. Madras Government 347

Bichelieu, &c., Narigation Co. v. Owners of SS. Breton ... 49, 367

Bicketson v. Bourchier (1890) 271

Bidsdale v. Clifton (1876) 202

— v. (1877) 342,355

Bieken «?. Justices of York Peninsula 200

Biel v. The Queen (1885) 230

Bivol's (John) Case (1790) 97

Robertson, Ex parte (1857) 252

v. Dumaresq (1864) 204,211

Bodger v. Comptoir D'Escompte (1871) 337, 360

Bogers v. Bajendro Duth (1860) 219-

Bolfe, Ex parte (1863) 81

Bookes v. Bookes (1840) 376

Boss -i?. Charity Commrs. (1882) 252

Royal Mail Steam Packet Co. v. George and Branday (1900) . . .343

Buckmaboye v. Lulloobhoy Mottichund (1852) 31&

Budapersad Singh v. Bam Parmeswar (1882) 338

Russell v. Russell (1898) . 338-

SAKAN SINGH v. Gopal Xeogi ISO-
Salisbury Gold Mining Co. v. Hawthorn (1897) 195

Sally, The (1799) 36(>

Sanitas Co. v. Ogle (1896) 77

TABLE OF CASES. XXIX

PAGE

Santa Can.i o. Ardevol (1830) 346

Sarchet, In re (1857) 221

Hauvageau v. Gauthier (1874) 59, 206, 300

Schultes i'. Hodgson (1822) 400

Secretary of State for India r. Srimati Fahamidunnissa Begum (1889) . 315

me, In re 90, 250

Lukhmee Chund Rao v. Seti Indra Mull (1870) 2!»1

Seths Gujmiill r. Mussumat Chahee Kowar (1874) 320

Shaftoe's Charity (1878) 252

Shah Mukhun Lall r. Baboo Sre Kishen Singh (1868) 338

Sheikh Inulad Ali r. Mussumat Kootby Begum (1841) . . . 303, 323

Sultan Sani r. Ajmodin (1892) 314

Shenton r. Smith (1893) 234

r. (1895) 252

Sheo Singh Rao r. Mussumat Dakho 208, 209, 314

Sheonath -e. Ramnath (1865) 324

SherwiU -P. The King (1836) 3(54

Shire r. Shire (1845) 211,215,368

Sibnarain Ghose, /;* re (1853) 201, 238

— v. Hullodhur Doss (1854) 298

Siemens r. Heirs of Bufe (1856) 215

Simmons v. Mitchell (1880) 199

Siniard t\ Townsend (1856) 196

Skinner, In re (1870) 215

r. Trustees' Agency 198

Smith r. Justices of Sierra Leone (1841) .... 195, 248, 256, 322

(1848) 248

Smyth v. Smyth (1831) 37.-)

r. The Queen (1898) 337

Sorensen r. The Queen (1857) 315

Southekul Krishna Row, EJC parte 255.313

Spooner r. Juddow (1850) 218

Spurier v. La Cloche 95, 228

Sree Mohun Ghutuck (1870)

Sreemutty Dossee r. Ranee Lalunmoney (1869) 321

Srimantu Raja Yarlagaddu Durga v. Srimantu Mullikarjuna (1891) . . 356

Srimati Rani Hurripria r. Rukimini Debi (1892) 349

Sribal Dei v. Kadar Nath 333

Srimati Nityamasi Dari r. Sen 1<;2

Sri Gridhoriji Maharaj Tickait r. Purushotum Gossami (1884) . . . 154
Sri Rajah Row Venkata Surya v. Court of Wards (1897) .... 159

St. Catherine's Milling and Lumber Co. (1888) 38

St. Louis r. St. Louis (1836) 63, 297

Stace v. Griffith (1869) 196, 235, 236^ 320

Standard Discount Co. v. La Grange (1877) 195

Stanford r. Brunette (1860) 271

States of Jersey, In re (1853) 240. 242

, Re Gibaut (1858) 243

XXX TABLE OF CASES.

PAGE

Strachan v. Dougall (1851) 313

Stratton v. Symon (1837) 333

Stronach, In re (1838) 246

Sun Fire Office r. Hart (1889) 219, 333

Sundur Koer v. Chandishur Prosed Singh 150

Sundur Koomaree Debbea v. Gudhadur Pershad Tewarree (1858) . . 349

Suraj Bunsi Koer v. Sheo Proshad Singh (1879) 334

Sutton Coldfield Grammar School, In re (1881) 252

Syed Ashgar Reza v. Syed Medhi Hossein Khan (1892) . . . 347, 350
Symes v. Cuvillier (1880) 57

TALUKA OP KOTDA-SANGANI r. The State of Gondal . . . .142

Tareenychurn Bonnerjee v. Maitland (1867) 347

Tarrick Chunder Buttercharjya v. Bykuntnath Sunuyal . . . .315

Tayammaul r. Sashachalla Naiker (1865) 349

Taylor, M. A., In re 218, 221

Tennantfl. Union Bank of Canada (1894) 315

Tewajee v. Trinibuk-jee (1842) 338

Thakar Rohan Sing r. Thakur Surat Sing (1884) 315

Thakur Harihar Buksh v. Thakur Uman Pershad (1886) .... 347
Thakur Shere Bahadur Sing v. Thakurain Dariao Kuar (1877) . .317, 324

Theberge v. Laudry (1876) 36, 212

Thompson v. Cartwright (1841) 333

Thornton r. Robin (1837) 319

Tilonko v. Att.-Gen. of Natal 224

Tooth v. Power (1891) 355

Toronto Rail. Co. v. Reg 280

Townsend v. Cox . 49, 220

Trent-Stoughton v. The Barbados Water Supply Co., Ld. (1893) . .112

Tronson v. Dent (1853) 196

Troup v. East India Co. (1857) 308

Tshingumuzi v. Att.-Gen. for Natal 231

Tupper, In re (1834) 95, 100, 216

Turner v. Cox (1853) 338

UBDOOLLAH v. Mootechund (1837) 285

Udwant Singh v. Tokhan Singh (1901) 357

Ulungama Eugenie Hamia v. Reg 231

Umreo Begam v. Irshed Husain 152

Union Colliery Co. of British Columbia v. Bryden (1899) .... 45

VANDA v. Mayor, &c., of Newcastle (1899) 211

Vasudeva Modehai v. Sadagopi Modehai 163, 236

Venganat Swaroosathil v. Cherakunnath Namviyathan . . . .153

Venayyamma Garu v. Venkataramannayyamma 159

Vencatasvvara lyam v. Shekhari Varma (1881) 347

TABLE OF CASES. XXXI

PAOB

Venkata NarisimhaAppa Row r. The Court of Wards (1880) . . . 356

Victoria Corporation r. Patterson (1899) 317

Railway Commissioners v. Brown 46, 73

WALKER, J. B., In re 241, 253, 254

v. Walker 226, 228

Ward r. Bishop of Mauritius 247, 407

Wastencys r. Wasteneys (1900) 228

Webb r. Outtrim 69, 70, 71

r. Macpherson 157

Webster r. Power (I860) 238

Wells, In re (1840) 244

Went worth r. Went worth (11)00) 315

'•. Johnson (1856) 304

White r. The Home Insurance Co. (1875) 63

ictoria Timber Co. (1910) 345

Whitfield, In re (1838) 342

— , In re (1845) 93

Whitney r. Joyce 348

Wi Matua, In re 36, 76

Wilfley Ore Syndicate r. Guthridge 73

William Ewing & Co. r. Dominion Bank 47

Williams r. Bishop of Salisbury (1863) 324

Willis r. Gipps (1846) 252, 254, 312

Wilson r. Callender (1855) 112, 201

Wise r. Kishencoomar Bous (1847) 307

Woolley r. Att.-Gen. of Victoria (1877) 37

Woomatara Debia r. Kristokaminee Dossee (1872) 338

YARLAGADDU PARSHAD NAYADDU, In re 357

v. Srimantu Mullikarjuna 356

Yeo v. Tatem (1871) 201, 337

Yusuf-ud-din r. The Queen (1897) 156, 230, 234

ZEMINDAR OF MERANGI r. Sri Raja Satrucharla Ramabadra Razu (1891) 352
Ramnad r. Zemindar of Yettiapooram (1859) . . .320

ADDENDA.

THE Home Rule for Ireland Bill contains the following
clauses which affect the Jurisdiction of the Judicial Committee
of the Privy Council. They give the Judicial Committee an
original jurisdiction to determine whether an Irish Act or
Irish Bill is within the powers of the Irish Parliament as well
as a final appellate jurisdiction in all Irish causes hitherto
susceptible of appeal to the House of Lords : —

28. — (1) The appeal from courts in Ireland to the House of
Lords shall cease ; and where any person would, but for this
Act, have a right to appeal from any court in Ireland to the
House of Lords, that person shall have the like right to appeal
to His Majesty the King in Council ; and all enactments
relating to appeals to His Majesty the King in Council, and
to the Judicial Committee of the Privy Council, shall apply
accordingly.

(2) When the Judicial Committee sit for hearing any appeal
from a court in Ireland in pursuance of any provisions of this
Act, there shall be present not less than four Lords of Appeal,
within the meaning of the Appellate Jurisdiction Act, 1876,
and at least one member who is or has been a judge of the
Supreme Court in Ireland.

(3) A rota of Privy Councillors to sit for hearing appeals
from courts in Ireland shall be made annually by His Majesty
in Council, and the Privy Councillors, or some of them, on that
rota shall sit to hear the said appeals. A casual vacancy
occurring in the rota during the year may be filled by Order
in Council.

(4) Nothing in this Act shall affect the jurisdiction of the
House of Lords to determine the claims to Irish peerages.

p.c. c

XXXIV ADDENDA.

29. — (1) If it appears to the Lord Lieutenant or a Secretary
of State expedient in the public interest that steps shall be
taken for the speedy determination of the question whether
any Irish Act or any provision thereof, or any Irish Bill or
any provision thereof is beyond the powers of the Irish Parlia-
ment, he may represent the same to His Majesty in Council,
and thereupon the said question shall be forthwith referred to
and heard and determined by the Judicial Committee of the
Privy Council, constituted as if hearing an appeal from a
court in Ireland.

(2) Upon the hearing of the question such persons as seem
to the Judicial Committee to be interested may be allowed to
appear and be heard as parties to the case, and the decision of
the Judicial Committee shall be given in like manner as if it
were the decision of an appeal, the nature of the report or
recommendation to His Majesty being stated in open court.

(3) Nothing in this Act shall prejudice any other power of
His Majesty in Council to refer any question to the Judicial
Committee or the right of any person to petition His Majesty
for such reference.

30. — (1) Where any decision of the Court of Appeal in
Ireland involves the decision of any question as to the validity
of any law made by the Irish Parliament, and the decision is
not otherwise subject to an appeal to His Majesty the King
in Council, an appeal shall lie to His Majesty the King in
Council by virtue of this section, but only by leave of the
Court of Appeal or His Majesty.

REFERENCES TO REPORTS.

THE references to the English Law Reports Appeal Cases,
which contain the cases heard by the Judicial Committee, are
made in many cases simply to A. C. preceded by the number
or year of the volume, and the letters L. R. are omitted :
e.g., Gushing v. Dupuy, 5 A. C. 409 ; Hadijar v. Pitchey, (1893)
A. C. 193. As regards the Reports of Indian Cases, the refer-
ences to the volumes of Indian Appeals in the Law Reports
are made in many cases simply to I. A., preceded by the
number of the volume, and the letters L. R. are omitted :
e.g., Re Moore, 20 I. A. 90.

The Indian Law Reports are often referred to as Bombay,
Calcutta, Madras, etc., preceded by the number of the volume :
e.g., Sri GridJwriji, etc., 10 Calc. 817.

Moore's Privy Council Reports are referred to simply as
Moo. : e.g., Macfarlane v. Ledaire, 15 Moo. 181.

Moore's Indian Appeal Reports are cited as Moo. I. A. :
e.g., Mohun Lai v. Bebee Doss, 1 Moo. I. A.

THE

PEACTICE OF THE PEIVT COUNCIL
IN JUDICIAL MATTEES.

PART I.

THE JURISDICTION AND THE RULES OF
APPEAL OF THE JUDICIAL COMMITTEE.

CHAPTER I.

THE CONSTITUTION AND JURISDICTION OF THE
PRIVY COUNCIL.

Historical.

THE King is the fountain of all justice throughout
his dominions, and has always exercised jurisdiction
in his Council, which acts in an advisory capacity to the
Crown. After the Norman Conquest there were two
Councils, the Magnum Concilium and the Commune
Concilium, and subjects who had grievances against
the administration of justice submitted their petitions
to the King, who thus exercised in all cases supreme
appellate jurisdiction. The court in which he himself
often sat in person to receive appeals from the
baronies and other subordinate judicatures within the
kingdom became known as the Curia Regis, and was
the root from which sprang the whole of our judicial

p.c. 1

z THE PRACTICE OF THE PRIVY COUNCIL.

system. When Parliament developed out of the King's
Council the bulk of the petitions were referred to it, and
the High Court of Parliament became the chief
appellate tribunal. But from the beginning of the
fourteenth century Keceivers and Triers of petitions
were appointed to aid the dispensation of justice in
Parliament. There were two groups of these receivers
and triers : one for Great Britain and Ireland, the
other for Guernsey, the lands beyond the seas, and the
isles. In an Ordinance of Edward II. it was
declared : " The King wills that in his Parliament
for the future certain persons shall be assigned to
receive petitions, and that they shall be determined
(delivres) by his Council (the triers), as was accus-
tomed in the time of his father." These triers were
originally composed of bishops, abbots, priors, peers,
and judges.

Appeals from The Common Law writs did not run out of the

oflathe°Ut kingdom, and as early as the year 1331 the claim of

kingdom. the Channel Islanders to have their cases determined

in their own islands before their own Courts, from

which an appeal had lain to the Duke of Normandy,

came before the King's Bench at Westminster.

It was with appeals from the islands of Jersey and
Guernsey that the King's Council probably commenced
the exercise of its regular functions as a Court of
Keview. The islands were very jealous of their exclu-
sive right to appeal to the King in Council, and the
King likewise was jealous of his exclusive privilege.
JerseyO.inC. An Order in Council of Henry VIL, dated 1495,
1495. ordered that henceforth no appeal from the islands

should be to any court in England, but only au Eoy
et Conseil.

During the Tudor era, however, the King in Council
continued to exercise jurisdiction not only in cases
which came in review from his dominions outside
England, but also in home cases. Moreover, in 1487

THE CONSTITUTION OF THE PRIVY COUNCIL.

a special tribunal of the King's Council, the Court of star
Star Chamber, was created or reconstituted to try Chamber-
suits of gravity against the King's subjects. This court
included the Chancellor, the Treasurer, the Lord Privy
Seal, a Bishop, a temporal Lord of the Council, the two
Chief Justices, or, in their absence, two other Justices.

But it seems that the King's Council still main-
tained its special jurisdiction to review petitions for
the King's grace side by side with the larger activity
of the Court of the Star Chamber, and the Committee
of the Council which heard appeals was not at any time
the same court as the Court of the Star Chamber.

Until the Tudor period appeals from the eccle- Jurisdiction
siastical courts were often carried to the Pope ; but
during the struggle between the King and Eome in the
reign of Henry VIII., an Act was passed for the Sub-
mission of the Clergy which forbade appeals from the
courts of the realm to Eome, and provided that in
place thereof (a)

For lack of justice at or in any the courts of the arch- Appeals from

bishops of this realm, or in any the King's dominions, it Archbishop's

shall be lawful to the parties aggrieved to appeal to the ch^ncer^a

King's Majesty in the King's Court of Chancery, and that to.be deter-
upon every such appeal a commission shall be directed under

the Great Seal to such persons as shall be named by the sioners to be
King's highness, his heirs or successors like as in case of

appeal from the Admirall Court, to hear and definitively Apalfrom
determine such appeals and the causes concerning the same : Admiral's
Which commissioners so by the King's highness, his heirs Courtt
or successors, to be named or appointed, shall have full
power and authority to hear and definitively determine
every such appeal, with the causes and all circumstances
concerning the same ; and that such judgment and sentence
as the said commissioners shall make and decree in and upon
any such appeal, shall be good and effectual, and also
definitive ; and no further appeals to be had or made from
the said commissioners for the same.

(a) 25 Hen. VIII. c. 19.

1—2

THE PRACTICE OF THE PRIVY COUNCIL.

Practice of
the Council
in appeals.

Guernsey
0. in C.

Earliest rules
extant.

Abolition
of Court
of Star
Chamber.

This enactment was the origin of the Commission of
Delegates, which for three centuries, from 1533—
1832, received and determined appeals from ecclesias-
tical courts. By virtue of a statute of Elizabeth (8
Eliz. c. 5, 1565), it also determined appeals from the
Admiralty Courts.

The Commissioners were appointed under the Great
Seal or Half-Seal, and were known as the High Court
of Delegates.

While Parliament had provided an appeal court for
ecclesiastical, admiralty, and civil causes, the appeals
from places beyond the realm were still left to the
Sovereign in Council. In 1580 complaints were again
received from Guernsey about the restriction of their
appeals ; and in reply an Order in Council was issued
which established the first known rules of pro-
cedure of the court.

The Order fixes a time limit within which the appeal
shall be brought, provides that an appealable judgment
must be final and definitive, requires the appellant to
prosecute and end his appeal within one year and a
day, and to give sureties to prosecute the appeal and
to pay costs in case he shall not make good his
appeal, " as the ancient custom of the Isle seemeth to
have been." The appellant is to be supplied with
a transcript of the proceedings under the seal of
the isle, and the bailiffs and jurats are required to
record the pleadings, the depositions of the witnesses,
and documents exhibited.

The Order in Council, together with a letter of the
Council of 1605, fixing the appealable value, form the
basis of the provisions which have ever since regulated
the appeals brought from all the foreign possessions
of the Empire to the Sovereign in Council.

In the reign of Charles I. the Court of Star Chamber,
which had become an instrument of royal oppression,
was abolished by statute (16 Car. I. c. 10, 1640).

THE CONSTITUTION OF THE PRIVY COUNCIL. 5

Henceforth, the appeals from civil matters within
the realm could be taken to the Court of Exchequer
Chamber, established by 27 Eliz. c. 8, 1584, with a
further appeal to the High Court of Parliament. The
jurisdiction of the Court of the Star Chamber, how-
ever, had been distinct from the jurisdiction of the
Sovereign in Council as the court to which appeals lay
from the Channel Islands, and the statute was not
intended to interfere with the jurisdiction of the Privy
Council which had been exercised before the passing
of the Star Chamber Act of Henry VII. Accordingly Colonial
we find no objection to the Council hearing appeals unaffected.
from the county palatines which continued to exist
within the kingdom or from the possessions, planta-
tions, and colonies beyond the kingdom.

During the seventeenth century the foundation of Growth of
England's colonial empire was laid in North America colomes-
and the West Indies ; and petitions began to be received
from the colonies asking for the King's grace as a relief
against the decisions of the local courts. In 1667, by
an Order of the Council making provision for com-
mittees of what was now known as the Privy Council,
certain members of the Council were appointed a stand-
ing committee, called a Committee for the Business of Committee
Trade, to deal with whatever concerns the plantations, n'esJof Trade

and, with the assistance of the Attorney-General or His (1667)-
Majesty's Advocate, to hear appeals from Jersey and
Guernsey. In 1683 an Order in Council declares that
no appeals for the future can be admitted at this Board
from the foreign plantations unless sufficient security
has first been given by the appellants.

In the same year a decision of Lord Keeper North
(Jcnnett v. Bishop, I Yernon, 264) affirmed the
principle that an appeal lay to the Sovereign in
Council from places held under grant from the Crown.
Four years later all the Lords of the Privy Council
were appointed a standing committee for trade and

THE PRACTICE OF THE PRIVY COUNCIL.

Plantations

Extension
jurisdiction,

Plan*ations, and by Order in Council, December 10,
1696, three of their Lordships were to form a quorum
in appeals from the plantations, and the Committee are
directed to report the matters heard by them and
their opinion thereon to His Majesty in Council. In
the case of Fryer v. Bernard (2 P. Wms. 262) it was
decided that appeals from the plantations lay only to
the King in Council. The committee of the whole
Privy Council, in accordance with this Order in
Council, continued to be the body to which appeals
were referred until the constitution of the Judicial
Committee by the Act of 1833. As our colonial
empire expanded during the eighteenth century, so
the area over which the Privy Council had the final
appellate jurisdiction was enlarged. For although
no general statute dealing with its jurisdiction
generally was passed before 1833, several Acts were
passed by the English Parliament making provision
for appeals from particular possessions to the
Sovereign in Council, and, further, every governor
sent out from England to any part of the dominions,
whether obtained by conquest, cession, or settlement,
had the right of establishing courts of justice ; and
as a corollary to that right the suitors in those courts
had the right of appealing for a review of the judg-
ment to His Majesty in Council. As regards the
possessions of the East India Company a special
statute was passed in 1773 (13 Geo. III. c. 63) pro-
viding for the better administration of justice on the
grant of a new charter. And it is therein enacted
that in case any person should think himself aggrieved
by any judgment of the Supreme Court of Judicature
to be established at Fort William, he may appeal to
His Majesty in Council within such time, in such
manner, and on such security as shall be prescribed
in this charter (s. 18).

Until 1833 a Committee of the Privy Council,

THE CONSTITUTION OF THE PRIVY COUNCIL.

consisting in theory of at least three of its ordinary
members, none of whom need have had any
judicial experience, was the body which was
entrusted with the function of reviewing the judg-
ments or orders of any courts in the King's dominions
outside the United Kingdom, from which an appeal
might be brought, either in accordance with the
statute or Order in Council or the commission of
the governor affecting the possession. Moreover, in Transfer of
1832 the appellate jurisdiction in ecclesiastical and
maritime causes, hitherto exercised by the High Court
of Delegates, was transferred by statute to the King
in Council (2 & 3 Will. IV. c. 92), and the Act of
Hen. VIII., so far as it related to appeals, as well as
the Act of Elizabeth, were repealed. In order to
prevent the continuation of the practice, which had
occasionally been employed in spite of the statute,
of granting commissions to review the judgments of
the High Court of Delegates, it was provided that
the judgments of the King in Council should be final
and definitive, and that no commission should here-
after be granted or authorised to review any judgment
or decree to be made by virtue of the Act.

The extended and continually increasing jurisdiction Formation of
of the Privy Council and the difficult nature of the *he Judicial

Committee.

questions with which it was required to deal demanded
a change in its constitution, so as to secure that the
appeals should always be heard by a judicial body of
repute ; and in 1833 an Act was passed which created The Judicial
a committee of the Sovereign's Privy Council, styled
" The Judicial Committee of the Privy Council." This
Act is the basis of the present constitution and the
present procedure of the tribunal. In the preamble the
transfer of the powers of the High Court of Delegates
to the Privy Council is recited, and also that Commis-
sioners for hearing appeals in causes of prize have been
from time to time hitherto appointed. The Act declares

8 THE PRACTICE OF THE PRIVY COUNCIL.

that an appeal lies to His Majesty in Council from
the decisions of Courts of Judicature in the East
Indies, and in the plantations, colonies, and other
dominions of His Majesty abroad, and the historical
fact that matters of appeal or petition to His
Majesty in Council have usually been heard before
a committee of the whole Privy Council ; and it
provides for the more effectual hearing and reporting
on appeals to His Majesty in Council and on other
matters, and for giving powers and jurisdiction to
His Majesty in Council as therein mentioned. It
goes on to enact that the President of the Council,
the Lord Chancellor, all the chief judges of the land,
and all who have held the office of Lord Chancellor
or President of the Council shall form the Judicial
Committee of the Privy Council, provided that the
King might by sign manual appoint two other
persons, being Privy Councillors, to be members of
the committee.

Reference to By this statute (a), all appeals or complaints in the
C°m" na^ure °^ appeals whatever which, either by virtue
of the Act or of any law, statute, or custom, may be
brought before His Majesty, or before His Majesty
in Council from or in respect of the determination,
sentence, rule, or order of any court, judge, or judicial
officer, shall in future be referred by His Majesty to
the Judicial Committee. Any other matters what-
soever as His Majesty shall think fit may be referred
for the advice of the Judicial Committee. There
appears nothing in this provision which precludes
the Sovereign from referring any such matter to a
committee of the Privy Council other than the
Judicial Committee as theretofore. But the Judicial
Committee have power to make any judicial repre-
sentation to the Crown touching the exercise of its

(a) 3 & 4 Will. IV. c. 41, s. 3. See Appendix A.

THE CONSTITUTION OF THE PRIVY COUNCIL. 9

prerogative rights. Farnum v. Adm.-General of British
Guiana, 14 A. C. 651.

It was the practice for a general reference to be General

made to the Judicial Committee of all petitions of 0

appeal lodged with the Clerk of the Council in
November in each year ; but by the Appellate Juris-
diction Act, 1908, it was enacted that His Majesty
might from time to time by Order in Council make
a general Order directing that all appeals should be
referred to the Judicial Committee of the Privy
Council until the Order was rescinded, in place of the
old order, by which the petitions for any year were
annually referred. In pursuance of this Act an Order
was issued in October, 1909, prescribing that after
the date of the Order all appeals in which petitions
might be presented to His Majesty in Council should
be referred to the Judicial Committee of the Privy
Council until His Majesty shall be pleased to rescind
the order, and that the Judicial Committee should
proceed to hear and report upon all such appeals in
like manner as if each appeal had been referred to it
by a special Order.

By the 5 & 6 Will. IV. c. 83, the Judicial Committee Extension of
were given an original jurisdiction to hear petitions Jurisdictlon-
for the prolongation of patents for inventions; and ^publication
a like jurisdiction was vested in them by the 5 & of
6 Viet. c. 45 to decide the question of republication of a
book after the author's death in the event of a refusal
by the proprietor of the copyright. The former juris-
diction, however, has been taken away by the Patents
and Designs Consolidation Act, 1907, which transfers
the duty to the judges of the Chancery courts, whose
decisions are appealable up to the House of Lords in
the ordinary way. The jurisdiction to grant com-
pulsory licences for the republication of a book or the
performance of a dramatic or musical work in public
is, however, conferred by the Copyright Act, 1911,

THE PRACTICE OF THE PRIVY COUNCIL.

Power to

receive

appeals

from Colonial

Courts of

First

Instance.

Amendments
of practice,
and constitu-
tion of the
Judicial
Committee.

which, while repealing the statute of Victoria, provides
(s. 4) that if after the death of the author of a literary,
dramatic, or musical work which has been published
or performed in public, a complaint is made to the
Judicial Committee that the owner of the copyright has
refused to republish or to allow the performance, they
may make an order for the owner to grant a licence.

A further extension in the powers of the Judicial
Committee was made by an Act passed in 1844
(7 & 8 Viet. c. 69), which empowers the Sovereign
by Order in Council to provide for the admission of
appeals from any court in any colony, although such
a court was not a court of error or appeal. Hitherto the
Privy Council had been a final appellate court, which
could entertain only those suits already taken to the
Court of Final Instance in the places where they were
originally brought. It was thought desirable to allow
an appeal to be brought in certain cases immediately
to the Privy Council. At that period the tendency
was to encourage appeals from the colonies ; but more
recently, since the self-governing Dominions have
united themselves into^, great federal unions, the
tendency has been to discourage appeals to the Privy
Council except from the Supreme Appellate Court in
the colony or the federal union.

Several Acts were passed and several Orders in
Council were issued in the middle of the nineteenth
century for improving the procedure and widening the
jurisdiction of the Judicial Committee, notably the
Judicial Committee Act, 1843 (6 & 7 Viet. c. 38) (a) ; but
the next important measure affecting its constitution
was an Act of 1871 (34 & 35 Viet. c. 91), by which four
persons might be appointed to act as paid members of
the committee. Five years later the Appellate Juris-
diction Act was passed (39 & 40 Viet. c. 59), by which
two persons who had held high judicial office as

(a) See Appendix A.

THE CONSTITUTION OF THE PRIVY COUNCIL. 11

defined in the Act for not less than two years might
be appointed to sit as Lords of Appeal in Ordinary
in the House of Lords, and also, if members of the
Privy Council, on the Judicial Committee, and two
further Lords of Appeal in Ordinary might be
appointed in place of the four paid members of
the Judicial Committee provided for by the earlier
statute. The effect of this enactment was to make
the constitution of the final appellate court for the
Dominions nearly identical with that of the appellate
court for Great Britain and Ireland. In 1881 an
Act was passed to enable Privy Councillors who held
or had held the office of Lord Justice of Appeal in
England to be members ipso facto of the Judicial
Committee, which established another link with the
English judicial bench. The Law Lords, the Lord
Chancellor, and the other English judges of the
highest rank were entitled to sit in either tribunal,
but the distinction in the membership of the two
august bodies remained, that in one the chief colonial
and Indian judges are empowered to sit, in the other
they cannot. And differences have also remained in
the procedure and in the form of hearing appeals.

The Judicial Committee was henceforth almost Ecclesiastical
entirely composed of the most eminent judges of the
empire, but provision was made in the Statute of 1876 appeals,
for the presence in ecclesiastical appeals of the great
dignitaries of the Church to assist the judicial members.
The material part of this section (14) declared : —

Her Majesty may by Order in Council, with the advice of
the Judicial Committee of Her Majesty's Privy Council or any
five of them, of whom the Lord Chancellor shall be one, and
of the archbishops and bishops being members of Her
Majesty's Privy Council, or any two of them, make rules
for the attendance, on the hearing of ecclesiastical cases as
assessors of the said committee of such number of the arch-
bishops and bishops of the Church of England as may be
determined by such rules.

THE PRACTICE OF THE PRIVY COUNCIL.

Transfer of
parts of old
jurisdiction
to the House
of Lords.

In accordance with this provision rules were made,
in 1876, providing that the Archbishop of Canterbury,
the Archbishop of York, and the Bishop of London
should be ex officio assessors of the Judicial Committee
on the hearing of ecclesiastical cases according to a
rota, by which each in turn should serve for a year,
and the four junior Bishops for the time being should
form a rota for the like period, to be succeeded by
the four next in seniority, and so on. In every
ecclesiastical case the five assessors for the time being
should be summoned, and no case should be heard
before the Judicial Committee, unless at least three
are present at the hearing.

In the large judicial and legal reforms which were
carried out in the United Kingdom during the mid-
Victorian period, part of the exceptional jurisdiction
of the Privy Council in English causes was transferred
to the newly-founded Court of Appeal and the House
of Lords. Thus, by the Judicature Act, 1873 (36 & 37
Viet. c. 66, s. 18), all appeals from any judgment or
order of the High Court of Admiralty, or from any
order in Lunacy made by the Lord Chancellor or
other person having jurisdiction in lunacy were so
transferred. By the Judicature Act for Ireland, 1877
(40 & 41 Viet. c. 57, s. 86), all decisions, judgments,
decrees, and orders of the Court of Appeal in Ireland
were made subject to appeal to the House of Lords,
and the alternative right of appeal to the Queen in
Council, which had hitherto existed in certain cases, was
taken away. At the same time the Judicial Committee
remains the final appellate court in matters of prize,
the provisions of the Naval Prize Act of 1864 being
confirmed in this respect by the Judicature Act of 1891
(54 & 55 Viet. c. 53), which declared (s. 4, sub-s. 3) :—

(3) Any appeal from the High Court when acting as a
Prize Court shall lie only to Her Majesty in Council, in
accordance with the Xaval Prize Act, 1864,

THE CONSTITUTION OF THE PRIVY COUNCIL. 13

Although, too, the Colonial Courts of Admiralty Admiralty
Act, 1890 (53 & 54 Viet. c. 27), following the English the Won?™
Judicature Acts, which had transferred the jurisdiction
of the High Court of Admiralty to the High Court, trans-
ferred and merged in the supreme courts of unlimited
civil jurisdiction in the colonies the admiralty juris-
diction which had hitherto been vested in the Vice-
Admiralty Courts, the appeal from a judgment in any
British possession invested with the Admiralty juris-
diction (either where there was of right no local
appeal or after a decision on local appeal) continued
to lie to Her Majesty in Council by virtue of the Act.

The conditions of appeal were provided for by the
same Act.

While the jurisdiction of the Privy Council in Extension of
matters which arose in the United Kingdom was ^P^1.
considerably narrowed down by statute, its jurisdic-
tion over matters which arose outside the kingdom
was continually enlarged by the extension of British
authority over Protectorates and spheres of influence
in semi-civilised countries which did not indeed form
part of the British Empire, but were in a peculiar
manner subjected in certain respects to British
sovereignty. This system of parcelling out enormous
tracts of country in Africa, Eastern Asia, and Poly-
nesia into Protectorates of the Great Powers was one
of the features of European diplomacy in the latter
part of the nineteenth century, and one of the
functions of the protecting state was to exercise juris-
diction and to set up courts. Moreover, in certain
fully sovereign states the Great Powers had from
the beginning of the nineteenth century obtained by
treaty or capitulation jurisdiction over their own
subjects, entirely independent of the local courts, e.g.,
in the Ottoman Empire, in Japan, and in China ;
and the appeal from such courts established by the
English Sovereign had always lain to the Privy

THE PRACTICE OF THE PRIVY COUNCIL.

Exercise of
jurisdiction
in foreign
country.

Exercise of
jurisdiction
over British
subjects in
countries
without
regular
governments.

Power to
assign juris-
diction to
British courts
in cases
within
Foreign
Jurisdiction
Act.

Appellate
jurisdiction
from British
settlements.

Council. In order to consolidate the various Acts
and Orders in Council relating to the exercise of Her
Majesty's jurisdiction out of the dominions, the Foreign
Jurisdiction Act was passed in 1890 (53 & 54 Viet,
c. 37), which provided as follows :—

1. It is and shall be lawful for Her Majesty the Queen to
hold, exercise, and enjoy any jurisdiction which Her Majesty
now has or may at any time hereafter have within a foreign
country in the same and as ample a manner as if Her
Majesty had acquired that jurisdiction by the cession or
conquest of territory.

2. Where a foreign country is not subject to any
government from whom Her Majesty the Queen might
obtain jurisdiction in the manner recited by this Act, Her
Majesty shall by virtue of this Act have jurisdiction over Her
Majesty's subjects for the time being resident in or resorting
to that country, and that jurisdiction shall be jurisdiction of
Her Majesty in a foreign country within the meaning of
the other provisions of this Act.

9. It shall be lawful for Her Majesty the Queen in
Council, by order, to assign to or confer on any court in
any British possession, or held under the authority of Her
Majesty, any jurisdiction, civil or criminal, original or
appellate, which may lawfully by Order in Council be assigned
to or conferred on any British court in any foreign country,
and to make such provisions and regulations as to Her
Majesty in Council seem meet respecting the exercise of
the jurisdiction so assigned or conferred, and respecting the
enforcement and execution of the judgments, decrees, orders,
and sentences of any such court, and respecting appeals
therefrom.

Three years previously the British Settlements Act
was passed to enable Her Majesty to provide for the
complete government of places possessing no civilised
government in which British subjects had settled.
These settlements either had become or were destined
to become regular possessions of the Crown; and
power was given to Her Majesty in Council

THE CONSTITUTION OF THE PRIVY COUNCIL. 15

From time to time to establish all such laws and institu- The Sovereign
tions, and constitute such courts and officers, and make make'laws
such provisions and regulations for the proceedings in the and establish
said courts and for the administration of justice, as may courts<
appear to Her Majesty in Council to be necessary for the
peace, order, and good government of Her Majesty's subjects
and others within any British settlement.

From the courts established in British settlements
under this Act, as well as from the courts established
under the Foreign Jurisdiction Act, appeals could be
brought, under rules laid down in various Orders in
Council, to the Judicial Committee of the Privy
Council.

Thus, starting as an appellate tribunal for cases Present
originating in the Channel Islands, the Privy Council

has come through its Judicial Committee to acquire of Judicial
jurisdiction in appeals brought from British courts in
every quarter of the globe and to be called upon to
administer every possible system of law. It has a
wider jurisdiction than any court known to history,
and it is unique in the variety of its suitors, which
include not only subjects of every part of the empire,
but also Indian gods, African chieftains, and vassal
princes.

On the other hand, the jurisdiction which the Privy
Council used to exercise over various kinds of cases
brought before special courts of the United Kingdom,
as in admiralty and ecclesiastical appeals, petitions
for prolongation of patents and extension of copyright,
matters of lunacy and of prize, has been in large
part transferred to the other supreme appellate
tribunal in the empire, the House of Lords. But
ecclesiastical cases and matters of prize may still be
brought before it on appeal ; and special committees
of the Council can deal with questions of mixed
administration and law which come in the first place
before the University and Education Commissioners.

THE PRACTICE OF THE PRIVY COUNCIL.

Kecent
changes in
membership
of Judicial
Committee.

Provisions

as to persons
being or
having been
colonial
chief justices
or judges.

From time to time, moreover, proposals are made
for adding to the functions of the Privy Council by
entrusting to a committee of their members some
duty which appears at the time to be unsatisfactorily
carried out. Such, for example, was the proposal of
the committee that considered the Censorship of
Plays to the effect that a committee of the Privy
Council should hear appeals from the decision of
the licenser of plays ; and such again was another
proposal that the Judicial Committee should deter-
mine whether a Bill before Parliament was or was
not a Money Bill. It is likely, then, that the possi-
bilities of employing the Privy Council for appellate
functions (in their fullest sense) have not yet been
exhausted.

During the last twenty years, though the Judicial
Committee has received no fresh branch of juris-
diction, several important reforms of its membership
and of its procedure have been carried. In the first
place it has been made more representative of the
empire by two Imperial Acts, the Judicial Committee
Amendment Act, 1895 (58 & 59 Viet. c. 44), and the
Appellate Jurisdiction Act, 1908 (8 Edw. 7, c. 51).

By the first it was enacted that —

(1) If any person being or having been chief justice or a
judge of the supreme court of the Dominion of Canada, or
of a superior court in any province of Canada, of any of
the Australasian colonies mentioned in the schedule to this
Act, or of either of the South African colonies mentioned in
the said schedule, or of any other superior court in Her
Majesty's dominions, named in that behalf by Her Majesty
in Council, is a member of Her Majesty's Privy Council
he shall be a member of the Judicial Committee of the
Privy Council.

(2) The number of persons being members of the Judicial
Committee by reason of this Act shall not exceed five at any
one time.

THE CONSTITUTION OF THE PRIVY COUNCIL. 17

The power of sitting on the Judicial Committee was
extended by the second Act to any person who had
been chief justice or judge of the Supreme Court of
Newfoundland, or chief justice or a justice of the
High Court of Australia ; while the Transvaal and
Orange River Colonies were added to the South African
Colonies in the schedule.

And by the second Act it was further provided that —

(1) For the purpose of the hearing of any appeal to His Colonial
Majesty in Council from any court in a British possession, 3adges as
His Majesty may, if he thinks fit, authorise any person who

is or has been a judge of the court from which the appeal is
made, or a judge of a court to which an appeal lies from
the court from which the appeal is made and whose services
are for the time being available, to attend as an assessor
of the Judicial Committee on the hearing of the appeal.

This section applies to British India, the Dominion of
Canada, the Commonwealth of Australia, the Dominion of
New Zealand, the colonies now united by the Union of South
Africa, and Newfoundland.

(2) If any person, having been chief justice or judge of
any High Court in British India (or of the High Court of
Bengal, Madras, Bombay, or the North- Western Provinces),
is a member of the Privy Council he may be appointed a
member of the Judicial Committee. Not more than two
persons shall be members of the committee at one time by
virtue of this section.

The practice and procedure of the Judicial Com- Kecent
rnittee were a subject of much discussion at the
Imperial Conference which was held in London in
1907. The colonial representatives generally raised
complaints on the one hand of the uncertainty of
the rules of appeal before the committee itself, and
on the other of the baffling variety of the conditions
of appeal from the different colonies and possessions,
which was caused by their different origin. In some
cases the conditions of appeal were fixed by the
charter establishing the colony or possession, in

p.c. 2

THE PRACTICE OF THE PRIVY COUNCIL.

Uniform
practice.

Limit of
appeals
from self-
governing
dominions.

others by an Order in Council, in others again by a
local ordinance, while in others where no special
provision had been made, they were fixed by general
Orders in Council, which had application to all appeals
not otherwise provided for. To meet these com-
plaints, and to satisfy the desire for uniformity of
procedure and conditions of appeal two large reforms
have been made in the practice of the Privy Council
since that Imperial Conference. In the first place
the practice and procedure of the Judicial Com-
mittee have been amended and consolidated by an
Order in Council of December 21, 1908, which
established a fresh body of rules in place of those
hitherto applied. In the second place a model set of
conditions of appeal was submitted to all the colonies,
with a recommendation that it should be adopted by
each of them in place of their existing provisions, so
as to equalise the conditions for all subjects in the
dominions, and to secure uniformity in the practice
and procedure. Most of the colonies have adopted
the rules submitted to them ; and Orders in Council
have been issued revoking the old order or ordinance
in every case where the new rules are accepted.
Some differences, for good reason, still remain as to
the length of time within which notice of appeal must
be presented, and as to the minimum amount of
the judgment from which an appeal will be allowed,
and the maximum amount of the security required to
be lodged by the appellant ; but the scheme of the
conditions is now the same in all cases. The rules
for appeals from Indian courts still remain peculiar,
but the practice in the rest of the British dominions
is rendered much simpler than it was before.

Another striking change of recent years in the
history of the Privy Council is the formation of the
great federal unions in the self-governing dominions
of Australia and South Africa. The provinces of

THE CONSTITUTION OF THE PRIVY COUNCIL. 19

Canada had federated themselves as far back as 1867,
but it was not till 1900 that the Australian
Commonwealth was formed of the five Australian
states, while ten years later the union of South Africa
was successfully accomplished. The constitution of
the federation in either case provides for a Supreme
Federal Court of Appeal, to which appeals from the
Supreme Court in each part of the federal whole
may be carried. And the colonial statesmen who
have engineered the two later federations have shown
a desire to restrict as much as possible appeals from
the oversea dominions to the Privy Council, except
in cases where the Supreme Appellate Court in the
dominion grants special leave to appeal.

Thus a powerful movement has been established Limitation of
towards limiting the prerogative of the Crown to f^Thf con^
grant leave to appeal by investing with that power stitution
the colonial court from which the appeal is sought, dominions.
The demand that the devolution of the power to
grant leave to appeal in special cases should be
extended to the local courts has been in large part
satisfied, so as to leave the Judicial Committee itself
free for the work of determining appeals.

The Imperial Conference of 1911 marked a great unification
step in the process of unifying the Judicial Committee of ^e.
of the Privy Council with the House of Lords and committee
combining the two supreme appellate tribunals into JjJjJ^1^
one Imperial Court of Appeal. The representatives of Lords.
the dominions have long pressed for unification, and
as the result of the deliberations of the Conference
it was left to the English law officers to prepare
a scheme for carrying out their desires as far as
possible. Accordingly a memorandum was issued
giving the details of the reforms made in the con-
stitution of the Judicial Committees in recent years,
and a summary of proposals for further reforms. In
the first place it is proposed to constitute in name a

2—2

20 THE PRACTICE OF THE PRIVY COUNCIL.

single court of appeal for the Empire sitting in two
divisions, the Privy Council and the House of Lords ;
and to strengthen this court by the addition of two
new lords of appeal to be appointed from the most
distinguished judges by the home Government. There
will thus be six law lords devoting their whole time
to the sittings of the two divisions, and it is proposed
that the court as far as possible shall sit at full
strength successively at the two places. In this way
the personnel of the two divisions will be almost
identical, and this will tend to the identity in pro-
cedure which is desired. Another approach to
similarity of treatment is contained in the proposal
that dissenting judges in the Privy Council should
give their reasons and express their dissent in the
same manner as is done in the House of Lords, if
His Majesty gives his consent to the change. The
increase in the size of the court will certainly add
to its dignity and authority, and will, it is hoped, make
the self-governing dominions more willing to submit
to it cases which have been before their highest
court. The proposals have been embodied in an
Appellate Jurisdiction Bill, which was introduced
into Parliament in 1911, but was not carried during
the session. It is likely, however, to be reintroduced
and to become law7.

The Privy Council has proved in the past a golden
link of empire, and it has been well called " the most
august court ever known." As part of the Imperial
Court of Appeal it may well be that a more splendid
future awaits it ; and before long we may reach the
ideal judicial reform — the establishment of an
Imperial Court of Appeal with one code of procedure
for all the subjects of the Crown.

CHAPTEK II.

COLONIAL APPEAL RULES.

THE procedure in Privy Council appeals falls into Division of
two divisions: the first is concerned with the steps pro 5 ure>
which must be taken to assert the appeal in the court
from which it is brought ; the second with the steps
which must be taken to prosecute the appeal in
England. Both parts of the practice have recently
been rendered as far as possible uniform, by the issue
of new regulations for the conditions of appeal from
the various colonies and jurisdictions, which regula-
tions are contained mainly in Orders in Council and to
a less extent in local ordinances, and by the consolida-
tion and amendment of the practice before the
Judicial Committee in the new rules of 1908.

The Imperial Conference of 1907 passed the following
resolutions : (i.) " That, with a view to the extension
of uniform rights of appeal to all colonial subjects of
His Majesty, the various Orders in Council, Instruc-
tions to Governors, Charters of Justice, Ordinances
and Proclamations upon the subject of the Appellate
jurisdiction of the Sovereign should be taken into
consideration for the purpose of determining the
desirability of equalising the conditions which gave
right of appeal to His Majesty."

(ii.) " That much uncertainty, expense, and delay
would be avoided if some portion of His Majesty's
prerogative to grant special leave to appeal in cases
where there exists no right of appeal were, under
definite rules and restrictions, delegated to the dis-
cretion of the local courts."

It was pointed out in a memorandum which was
before the Conference that there are certain provisions

22 THE PRACTICE OF THE PRIVY COUNCIL.

Uniform in every Order in Council, Charter, etc., regulating
appeal!01" appeals to His Majesty in Council which must be
common to every set of circumstances, and indeed
every new Order in Council regulating appeals as a
rule contains such provisions. The principal variations
which existed concerned the appealable amount, the
limit of time for appealing as of right, and the lodging
of security for costs. A uniform Order applicable to
every part of the dominions beyond the seas could
only be made after consultation with each colony or
dependency interested, and it was improbable that
there would be unanimity as to these points of varia-
tion. At the same time it was felt to be feasible to
frame a number of common provisions revised so
as to meet modern requirements, leaving the particular
provisions suitable to each colony or dependency
to be inserted after consultation with the proper
authorities.

This accordingly was done ; and the scheme having been
approved of by the various colonies to which it was sub-
mitted, a number of Orders in Council have been issued
bringing it into general operation. The rules are based
on the assumption that the court appealed from is best
qualified to deal with any questions that may arise in con-
nection with the appeal up to the dispatch of the record to
England. They seek, accordingly, to invest the court with
all necessary powers for that purpose. The court is fully
seised of the case up to the date of the order granting final
leave to appeal, and where the making of that order is post-
poned till the record is ready for dispatch, no further
questions arise. Where, however, as often happens, some
time elapses between the final order and the dispatch of the
the record, questions may arise with which the court, in
the absence of express authority, may deem itself incom-
petent to deal. Some of the new rules are designed to
meet difficulties of this kind.

It is to be noted that the rules do not apply to Indian
appeals.

COLONIAL APPEAL RULES.

The rules open with a number of definitions which agree Definitions in

with those contained in the Judicial Committee Rules. p rules.

1. The definition clause provides : — In these rules, unless
the context otherwise requires : —

" Appeal " means appeal to His Majesty in Council ;
" His Majesty " includes His Majesty's heirs and

successors ;
" Judgment " includes decree, order, sentence, or

decision ;

" Court " means either the full court or a single judge
of the Supreme Court, according as the matter in
question is one which, under the rules and practice of
the Supreme Court, properly appertains to the full
court or to a single judge.

" Record " means the aggregate of papers relating to aii
appeal (including the pleadings, proceedings, evidence
and judgments) proper to be laid before His Majesty
in Council on the hearing of the appeal ;
"Registrar" means the registrar or other proper officer
having the custody of the records in the court appealed
from ;

•• Month " means calendar month ;
Words in the singular include the plural, and words in

the plural include the singular.

In a few colonies the court from which the proposed.
appeal is to be brought is not the Supreme Court, but
a court of the like degree under another name ; but the
rules of course apply equally. It is for the local rules to deter-
mine whether the application for leave to appeal comes
before the full colonial court or a single judge. The model
rules provide as follows : —

2. Subject to the provisions of these rules, an Appealable

, , „ ,. limit.

appeal shall he —

(a) As of right, from any final judgment of the
court, where the matter in dispute on the
appeal amounts to or is of the value of £
sterling or upwards, or where the appeal
involves, directly or indirectly, some claim or
question to or respecting property or some

24 THE PRACTICE OF THE PRIVY COUNCIL.

civil right amounting to or of the value of
£ sterling or upwards ; and
(b) At the discretion of the court, from any other
judgment of the court, whether final or inter-
locutory, if, in the opinion of the court, the
question involved in the appeal is one which,
by reason of its great general or public import-
ance or otherwise, ought to be submitted to
His Majesty in Council for decision.

(a) The blank space for the appealable amount is differently
filled up in the Orders in Council issued for the various
colonies. The appealable amount varies according to the
local circumstances from 300?. to 2,0007. ; but 500Z. is the
most usual amount. The exact figure for each colony will
be found in the part of the book which deals with the regula-
tions of appeal from each part of the empire specifically.
For the consideration of what is a final judgment and the
circumstances in which the appeal is taken to involve a
claim respecting property or a civil right amounting to the
appealable value, see Chapter V., pp. 195 — 202.

(b) This part of the rule involves a change in the pro-
cedure which had hitherto existed in most colonies, from
which a right of appeal could only be granted by the local
courts when the case fell within the appealable amount.
In other cases special leave had to be sought from the
Privy Council before the appeal could be brought. This
was a cumbrous method of proceeding, and the resolution
passed at the Imperial Conference suggested the change
which this rule is designed to carry out. Henceforth the
local court, in respect of which regulations for appeal are
made, may itself grant leave to appeal from any judgment
which does not fall within the pro vision of sub-section (a), if
in its opinion the question involved is one fit and proper for
appeal. The local courts will doubtless be guided in inter-
preting this sub-section by the decisions of the Privy Council
in granting special leave to appeal. (See Chapter VI.)

At the same time rule 28 preserves the power of the Privy
Council to grant special leave to appeal whenever it thinks
fit, There may be cases where the local court has refused

COLONIAL APPEAL RULES. 25

leave to appeal, while the Privy Council may think that
they should be brought before it. Or again, there may be
judgments given by the inferior courts in the colony to
which the regulations do not apply.

3. Where in any action or other proceeding no final Entering
judgment can be duly given in consequence of a dif-
ference of opinion between the judges, the final judg-
ment may be entered pro formd on the application of

any party to such action or other proceeding according
to the opinion of the Chief Justice or, in his absence,
of the senior puisne judge of the court, but such
judgment shall only be deemed final for purposes of
an appeal therefrom, and not for any other purpose.

4. Applications to the court for leave to appeal Application
shall be made by motion or petition within days appeal™
from the date of the judgment to be appealed from,

and the applicant shall give the opposite party notice
of his intended application.

The time within which leave to appeal must be asked for
varies again in the different colonies, but the usual period is
twenty-one days. Even though the subject-matter of the
suit is clearly above the amount specified in rule 2 (a) for
an appeal as of right, leave to appeal must be obtained by
an application to the court. On the application the court
fixes the terms on which the appeal shall proceed. When
there is no appeal as of right, the court determines whether
the case falls within the provisions of rule 26.

5. Leave to appeal under rule 2 shall only be Conditions of
granted by the court in the first instance — leave<

(a) Upon condition of the appellant, within a period
to be fixed by the court, but not exceeding
three months from the date of hearing of the
application for leave to appeal, entering into
good and sufficient security, to the satisfaction
of the court, in a sum not exceeding £500,
for the due prosecution of the appeal, and the
payment of all such costs as may become

26 THE PRACTICE OF THE PRIVY COUNCIL.

payable to the respondent in the event of the
appellant's not obtaining an order granting
him final leave to appeal, or of the appeal
being dismissed for non-prosecution, or of
His Majesty in Council ordering the appellant
to pay the respondent's costs of the appeal
(as the case may be) ; and

(b) upon such other conditions (if any) as to the
time or times within which the appellant shall
take the necessary steps for the purpose of
procuring the preparation of the record and
the dispatch thereof to England as the court,
having regard to all the circumstances of the
case, may think it reasonable to impose.

There are cases in which the court will not allow so
long a period as three months within which the appellant
must give security for costs, and there are a few where the
maximum amount is fixed at a different sum. Security is
usually given by a bond with two sureties.

Suspending Qm Where the "judgment appealed from requires the
execution.

appellant to pay money or perform a duty, the court

shall have power, when granting leave to appeal,
either to direct that the said judgment shall be carried
into execution or that the execution thereof shall be
suspended pending the appeal, as to the court shall
seem just, and in case the court shall direct the said
judgment to be carried into execution, the person in
whose favour it was given shall, before the execution
thereof, enter into good and sufficient security, to the
satisfaction of the court, for the due. performance of
such order as His Majesty in Council may think fit to
make thereon.

The appellant may apply to the Privy Council for special
leave to appeal from a decision of the colonial court refusing
to grant a stay of execution in accordance with its dis-
cretionary powers under this rule ; but, except in a very

COLONIAL APPEAL RULES. 27

strong case, the Judicial Committee will not interfere.
(See pp. 20-4 and 214.)

7. The preparation of the record shall be subject to Preparation
the supervision of the court, and the parties may °
submit any disputed question arising in connection
therewith to the decision of the court, and the court

shall give such direction thereon as the justice of the
case may require.

8. The registrar, as well as the parties and their
legal agents, shall endeavour to exclude from the
record all documents (more particularly such as are
merely formal) that are not relevant to the subject-
matter of the appeal, and generally to reduce the bulk
of the record as far as practicable, taking special care
to avoid the duplication of documents and the unneces-
sary repetition of headings and other merely formal
parts of the documents ; but the documents omitted
to be copied or printed shall be enumerated in a list
to be placed after the index or at the end of the
record.

For the practice as to the preparation of the record and as
to the costs allowed when a disputed document is admitted
see pp. 269 ff. Eules 7 — 13 correspond with the Judicial
Committee Rules 12—18. (See pp. 267 ff.) The Schedule
of the Rules for Printing the Record is identical with the
similar Schedule in the Judicial Committee Rules.

9. Where in the course of the preparation of a
record one party objects to the inclusion of a document
on the ground that it is unnecessary or irrelevant, and
the other party nevertheless insists upon its being
included, the record, as finally printed (whether in
the colony or in England), shall, with a view to the
subsequent adjustment of the costs of and incidental
to such document, indicate in the index of papers, or
otherwise, the fact that, and the party by whom, the
inclusion of the document was objected to.

28 THE PRACTICE OF THE PRIVY COUNCIL.

10. The record shall be printed in accordance with
the rules set forth in the schedule hereto. It may be
so printed either in the colony or in England.

11. Where the record is printed in the colony, the
registrar shall, at the expense of the appellant, trans-
mit to the Registrar of the Privy Council 40 copies of
such record, one of which copies he shall certify to be
correct by signing his name on, or initialling, every
eighth page thereof and by affixing thereto the seal of
the court.

12. Where the record is to be printed in England, the
registrar shall, at the expense of the appellant, transmit
to the Registrar of the Privy Council one certified copy
of such record, together with an index of all the papers
and exhibits in the case. No other certified copies
of the record shall be transmitted to the agents in
England by or on behalf of the parties to the appeal.

13. Where part of the record is printed in the
colony and part is to be printed in England, rules 10
and 11 shall, as far as practicable, apply to such parts
as are printed in the colony and such as are to be
printed in England respectively.

14. The reasons given by the judge, or any of the
judges, for or against any judgment pronounced in
the course of the proceedings out of which the appeal
arises, shall by such judge or judges be communicated
in writing to the registrar, and shall by him be trans-
mitted to the Registrar of the Privy Council at the
same time when the record is transmitted.

Consolidation 15. Where there are two or more applications for
appeals. ieave to appeal arising out of the same matter, and
the court is of opinion that it would be for the con-
venience of the lords of the Judicial Committee and all
parties concerned that the appeals should be con-
solidated, the court may direct the appeals to be
consolidated and grant leave to appeal by a single
order.

COLONIAL APPEAL RULES. 29

The consolidation of the appeal before the record is sent -to
England saves much expense, and should therefore be applied
for in a proper cause in the colony. Occasionally when a
number of causes turn upon the same point, the court will
allow them to be consolidated so as to bring them within the
appealable amount. (See pp. 219 and 284 ff.)

16. An appellant who has obtained an order grant- Withdrawal
ing him conditional leave to appeal may at any time of a-PP6*1-
prior to the making of an order granting him final

leave to appeal withdraw his appeal on such terms as
to costs and otherwise as the court may direct.

17. Where an appellant, having obtained an order Rescinding
granting him conditional leave to appeal, and having
complied with the conditions imposed on him by such

order, fails thereafter to apply with due diligence to
the court for an order granting him final leave to
appeal, the court may, on an application in that
behalf made by the respondent, rescind the order
granting conditional leave to appeal, notwithstanding
the appellant's compliance with the conditions imposed
by such order, and may give such directions as to the
costs of the appeal and the security entered into by
the appellant as the court shall think fit, or make
such further or other order in the premises as, in the
opinion of the court, the justice of the case requires.

18. On an application for final leave to appeal, the
court may inquire whether notice, or sufficient notice,
of the application has been given by the appellant to
all parties concerned, and, if not satisfied as to the
notices given, may defer the granting of the final
leave to appeal, or may give such other directions in
the matter as, in the opinion of the court the justice
of the case requires.

These rules contemplate that when first application for
leave to appeal is made in accordance with rule 3 above, the
court shall only grant conditional leave, the condition being
that the appellant shall find adequate security and comply

30 THE PRACTICE OF THE PRIVY COUNCIL.

with the requirements of the court as to the preparation of
the record. (See rule 4.) When these conditions have been
satisfied, the appellant should apply to the court for final
leave to appeal, and the respondent may then offer any
reason against the application being granted. If the appel-
lant does not so apply within reasonable time the respondent
may apply for the rescission of the order granting conditional
leave.

19. An appellant who has obtained final leave to
appeal shall prosecute his appeal in accordance with
the rules for the time being regulating the general
practice and procedure in appeals to His Majesty in
Council.

The rules which at present regulate the practice are the
Judicial Committee Rules of 1908, which are set out at
length in Part II. of this book. The first step in England
which the appellant has to take is to enter an appearance,
and to see to the printing of the record in England if it
does not arrive printed.

Dismissal of 20. Where an appellant, having obtained final leave
to appeal, desires, prior to the dispatch of the record
to England, to withdraw his appeal, the court may,
upon an application in that behalf made by the
appellant, grant him a certificate to the effect that the
appeal has been withdrawn, and the appeal shall
thereupon be deemed, as from the date of such
certificate, to stand dismissed without express order
of His Majesty in Council, and the costs of the appeal
and the security entered into by the appellant shall
be dealt with in such manner as the court may think
fit to direct.

The Colonial Court cannot directly dismiss the appeal, but
the procedure provided in this rule enables the same result
to be achieved indirectly. For the steps to be taken to
withdraw an appeal after the record has been sent to England,
see Part II., pp. 300 ff.

21. Where an appellant, having obtained final leave
to appeal, fails to show due diligence in taking all

COLONIAL APPEAL RULES. 31

necessary steps for the purpose of procuring the dis-
patch of the record to England, the respondent may,
after giving the appellant due notice of his intended
application, apply to the court for a certificate that
the appeal has not been effectually prosecuted by the
appellant, and if the court sees fit to grant such a
certificate, the appeal shall be deemed, as from the
date of such certificate, to stand dismissed for non-
prosecution without express order of His Majesty in
Council, and the costs of the appeal and the security
entered into by the appellant shall be dealt with in
such manner as the court may think fit to direct.

For the steps to be taken to obtain the dismissal of an
appeal for non-prosecution after the record has been
dispatched to England, see Part II., pp. 295 if.

22. Where at any time between the order granting Substituting
final leave to appeal and the dispatch of the record to Parties<
England the record becomes defective by reason of the

death, or change of status, of a party to the appeal,
the court may, notwithstanding the order granting
final leave to appeal, on an application in that behalf
made by any person interested, grant a certificate
showing who, in the opinion of the court, is the proper
person to be substituted or entered on the record in
place of, or in addition to, the party who has died, or
undergone a change of status, and the name of such
person shall thereupon be deemed to be so substituted
or entered on the record as aforesaid without express
order of His Majesty in Council.

23. Where the record subsequently to its dispatch
to England becomes defective by reason of the death,
or change of status, of a party to the appeal, the
court shall, upon an application in that behalf made
by any person interested, cause a certificate to be
transmitted to the Registrar of the Privy Council show-
ing who, in the opinion of the court, is the proper

32 THE PRACTICE OF THE PRIVY COUNCIL.

person to be substituted, or entered on the record, in
place of, or in addition to, the party who has died or
undergone a change of status.

The Privy Council must have the proper parties before it,
or its decrees will not be binding. When therefore one of
the parties to an appeal, either appellant or respondent, dies,
or suffers a change of status, as by marriage or bankruptcy,
the record has to be amended by substituting the proper
person in his place. If the change occurs before the record has
been dispatched to England, it can be remedied by the certifi-
cate of the Colonial Court, given in accordance with rule 22,
without any formal petition to the Privy Council. But if
the record has been dispatched to England there must be a
petition of -reviver, as it is called, to the Judicial Committee
to allow the necessary amendment, and the certificate of the
Colonial Court is then required by the rules of the Judicial
Committee to accompany the petition. (See rule 51, pp.
309 — 310.) Rule 23 enables the certificate to be obtained
by any person interested. The determination of the person
to be substituted on the record depends on the local law.

Printing of 24. The case of each party to the appeal may be
printed either in the colony or in England and shall,
in either event, be printed in accordance with the
rules set forth in the schedule hereto, every tenth line
thereof being numbered in the margin, and shall be
signed by at least one of the counsel who attends at
the hearing of the appeal, or by the party himself if
he conducts his appeal in person.

25. The case shall consist of paragraphs numbered
consecutively and shall state, as concisely as possible,
the circumstances out of which the appeal arises, the
contentions to be urged by the party lodging the same,
and the reasons of appeal. References by page and
line to the relevant portions of the record as printed
shall, as far as practicable, be printed in the margin,
and care shall be taken to avoid, as far as possible,
the reprinting in the case of long extracts from the
record. The taxing officer in taxing the costs of the

COLONIAL APPEAL RULES. 33

appeal, shall, either of his own motion, or at the
instance of the opposite party, inquire into any
unnecessary prolixity in the case and shall disallow
the costs occasioned thereby.

These rules correspond with rules 61 and 63 of the
Judicial Committee Rules of Appeal. (See Part II., p. 287.)
The case contains the presentation of the facts and conten-
tions and reasons for and against the appeal which are
advanced respectively by either party. It cannot be lodged
in England till the petition of appeal has been lodged and
an appearance entered. It must be bound together with
the record in the manner prescribed by rule 68 of the
Judicial Committee Rules.

26. Where the Judicial Committee directs a party to Costs in
hear the costs of an appeal incurred in the colony, colony-
such costs shall be taxed by the proper officer of the
court in accordance with the rules for the time being
regulating taxation in the court.

The rules as to costs in the Privy Council are given in
Chapter XIII., p. 326 ff. The Registrar of the Privy
Council can only deal on taxation with the costs incurred in
England, and where the order of the Judicial Committee
affects costs paid in the colony they must be taxed by the
local officer according to the local Jaw.

27. The court shall conform with, and execute, any Enforcing
order which His Majesty in Council may think fit to Judsmeilt-
make on an appeal from a judgment of the court in

like manner as any original judgment of the court
should or might have been executed.

When the colonial court does not execute the decree of
the Judicial Committee to the satisfaction of one of the
parties to the appeal, he may make an application to the
Judicial Committee to issue a supplemental order to the
colonial court to enforce the decree. See Chapter XIV.,
p. 354.

28. Nothing in these rules contained shall be
r.c. 3

THE PRACTICE OF THE PRIVY COUNCIL.

deemed to interfere with the right of His Majesty,
upon the humble petition of any person aggrieved by
any judgment of the court, to admit his appeal there-
from upon such conditions as His Majesty in Council
shall think fit to impose.

As was pointed out in the notes to rule 2, above, though
discretion is given by these rules to the colonial court to
admit an appeal in any case where it thinks fit, the pre-
rogative of the Crown in Council to grant leave to appeal in
any case not covered by these rules, or in any case in which
the colonial court has refused leave to appeal, remains
unaffected. Application for leave to appeal must, however,
first be made to the colonial court. The colonial rules of
appeal are applied almost exclusively to appellate courts in
the colonies and protectorates, and there may be special
cases where the Judicial Committee will think fit to grant
leave to appeal from an inferior court. Again, the colonial
court may have refused leave in a case below the appealable
amount where the Judicial Committee may think fit to
entertain the appeal. The appellant, in such a case, must
present a petition for leave to appeal to the Privy Council
in accordance with rules 3, 4, 5 of the Judicial Committee
Rules. (See Chapter VI., pp. 205 and 213.) The pre-
rogative of the Crown to admit appeals from a colonial court
may have been expressly taken away by an Imperial or
colonial statute, and in that case a petition for leave to
appeal will not be entertained. But in every other case a
petition may be presented to His Majesty in Council for
leave to appeal. (See p. 36.)
Admiralty The Colonial Appeal Rules do not apply to appeals in

Admiralty cases brought from Colonial Courts of Admiralty,
where special rules have been made to govern the pro-
cedure in the colonial courts. (See below, p. 368.)

CHAPTER III.

KULES OF APPEAL FOR THE SELF-GOVERNING DOMINIONS,
COLONIES, POSSESSIONS, AND FOFiEIGN JURISDICTIONS.

THE countries and places from which appeals may be Introductory,
brought to the Judicial Committee of the Privy Council are
united with the English Crown by very diiferent ties, and
enjoy varying amounts of self-government. The relations
of their courts to the supreme appellate tribunal of the empire
are correspondingly varied ; and although, as has been
stated, great advance has been made of recent years towards
uniformity in the conditions of appeal, it is still necessary
to consider in detail the rules of each part of the empire
relating to appeals.

In the first place come those self-governing dominions
which have a fully responsible government, and which
comprise the Dominion of Canada and its separate Provinces,
the Commonwealth of Australia and its separate States, the
Union of South Africa with its separate Provinces, the
Dominion of New Zealand, and the Colony of Newfoundland.
In these countries the Crown has no right of legislating,
and the chief constitutional link with the mother country is
the Governor, who is appointed by the Crown, while the
government is administered by ministers responsible to
an elected legislature.

:o come the colonies which have partly responsible
government, the legislative power being in the hands of a
Governor with an elected legislative assembly or nominated
legislative council, and in some cases with an elected legis-
lative assembly and an executive council responsible to the
Crown. These include the West India Islands, Mauritius,
Malta, Ceylon, the Bahamas, the Falkland Islands, etc.

:t in order are the colonies in which the legislative
power is in the hands of the Governor alone: Gibraltar,
Labuan, and St. Helena. Then there are possessions of the

3—2

36 THE PRACTICE OF THE PRIVY COUNCIL.

Crown which are not strictly colonies, and have a special
and peculiar connection with the Crown : British India, the
Channel Islands, and the Isle of Man.

Lastly come the Charter Governments and Proprietary
Governments, granted out by the Crown to individuals or
civil corporations, usually as a prelude to a more complete
annexation as colonies, such as the territories of the old
Royal Niger Company, the British South Africa Company,
and the British East Africa Company. For these the
Crown may legislate by Order in Council.

In addition to these colonies and possessions, there
are, as has been mentioned, foreign jurisdictions of the
Crown, either in territories which, though not part of
the Crown's dominions, are enjoying a British protectorate,
or in countries which have not a European civilisation, and
which by treaty or capitulation have resigned jurisdiction
over British subjects to the courts established by their
Sovereign.

Right of From the courts in all these places, with a few exceptions

appeal. hereinafter set out, there is a right of appeal to His Majesty

in Council ; for the King in virtue of his prerogative has
authority to review the decisions of all colonial courts and
all courts on which British jurisdiction has been conferred,
whether the proceedings be of a civil or criminal character,
unless His Majesty has parted with such authority (of.
Falkland Islands Co. v. The Queen, 1 Moo. N. S. 299 ; In
re Lillet, 12 A. C. 466 ; Gushing v. Dupuy, 5 A. C. 409).

The appellate jurisdiction of the Crown in Council is not
affected where there is a statutory provision in a colony
enacting that particular proceedings in the colonial courts
shall be final (cf. In re Louis Marois, 15 Moo. P. C. 189 ;
and In re Wi Matua (Deceased), (1908) A. C. 448 ; and
Canadian Pacific Raihvay Co. \. Toronto Corporation, etc.,
(1911) A. C. 461). But if functions are conferred on the
court by the colonial statute which would not otherwise have
belonged to it as the general distributor of justice, or if its
procedure is not judicial but political and administrative in
its nature, the prerogative of the Crown does not arise
(Thcberge v. Laudry, 2 A. C. 102; Gushing v. Dupuy,
5 A. C. 404 ; Moses v. Parker, (1896) A. C. 245).

Parting with In any case where the prerogative has existed, precise
prerogative.

RULES OF APPEAL FOR THE COLONIES, ETC. 37

words must be shown to take away the prerogative (a). It
is competent, however, for the Crown to part with its pre-
rogative right to receive appeals, although of itself it cannot
deprive the subject of any of his rights. This may be done
when the Imperial legislature, of which the Crown is part,
itself limits the prerogative or delegates to a colonial legis-
lature the duty of framing provisions on the subject of
appeal, and thus limiting the Crown's prerogative (b).

If the prerogative is aptly and expressly limited in either
of these ways, the Privy Council can no longer grant the
subject special leave to appeal.

The jurisdiction of the Sovereign in Council upon the Limit of
hearing of an appeal is no wider than is the jurisdiction of ^unsc
the court from which the appeal conies. King v. Henderson
(Canada, 1808), 79 L. T. 37. As a corollary to that
observation it may be recalled that the courts of a depen-
dency can have no jurisdiction wider than the powers vested
in the legislative authority. It has been stated that " the
legislature has no power over any persons except its own
subjects — that is, persons, natural bom subjects, or resident,
or whilst they are within the limits of the kingdom. The
legislature can impose no duties except on them ; and when
legislating for the benefit of persons, must, primd facie, be
considered to mean the benefit of those who owe obedience
to our laws and whose interests the legislature is under a
correlative obligation to protect " (r).

An appeal can be brought to the Privy Council either in Method of
virtue of leave granted by the colonial court in accordance
with its delegated power to grant it, or in virtue of special
leave granted by the Council itself. Where the case does
not fall within the terms of the power of the colonial court
to grant leave to appeal, and where the prerogative of the
King to grant such leave has not expressly been taken
away, the subject desiring to appeal from the judgment or

(a) Cf. Reg. v. Alloo Paroo (Bomb. 1847), 5 Moo. at 303 ; Woolley
v. Att.-Gen. of Victoria (1877), 2 A. C. 163: Att.-Gen. of British
Columbia v. Att.-Gen. of Canada (1889), 14 A. C. 295.

(b) Cf. Cunllier v. Aylwin (Low. Can. 1832), 2 Knapp, 72, and Ee
Marois (Low. Can. 1862), 15 Moo. at 193 ; Reg. v. Byramjee (Bomb.
1846), 5 Moo. 276.

(c) Per Baron Parke (Lord Wensleydale) in Jefferys v. Boosey, 4
H. L. at p. 926, cited and approved in Madeod v. Att.-Gen. ofN. S. W.,
(1891) A. C. 455.

THE PRACTICE OF THE PRIVY COUNCIL.

Delegation
to colonial
court of
granting
leave to
appeal.

The

Dominion of
Canada.

Laws.

Upper and

Lower

Canada.

B. N. A. Act.
1867.

order of any court or judicial tribunal in the colony can
apply for special leave to His Majesty in Council, and must do
so, and obtain leave before he can present the appeal itself.

The delegation to the colonial courts is most ample, and
the prerogative of the Privy Council to grant special leave
is most limited, in the case of the three self-governing
federated dominions of Canada, Australia, and South Africa.
In each case the federal union is constituted by an Act of
the Imperial Parliament which provides for the conditions of
appeal from the supreme federal court to His Majesty in
Council.

A brief account of the courts in the British dominions
and the special rules of appeal which have been issued for
each colony or possession or foreign jurisdiction are set out in
this chapter. Save where special rules are expressly men-
tioned, the "Colonial Rules of Appeals," which are dealt
with in the former chapter, apply and regulate the procedure
in the appeal till the record is despatched to England.

CONDITIONS OF APPEAL IN EACH COLONY.
I. CANADA.

Canada was formerly a French possession, but was
conquered by the English in 1759, and by the Treaty of
Paris was ceded to England in 1763, when the English
criminal and civil law was established together with the laws
of the Admiralty by Royal Proclamation. The proclamation
reserved liberty to all persons who may think themselves
aggrieved by the sentence of any of the courts in all civil
cases to appeal, with the usual limitations and restrictions, to
the Sovereign. As to the force and effect of the proclama-
tion, cf. CampMl v. Hall (1779), 1 Cowp. 204, and St.
Catherine's Milling and Lumber Co. (Out. 1888), 14 A. C. 46.

In 1791 Quebec was divided, by 31 Geo. III. (Imp.) c. 31,
into the provinces of Upper and Lower Canada under
representative governments. In 1840, by Lord Durham's
Act (3 & 4 Yict. (Imp.) c. 35), the two provinces were
reunited under the name of the Province of Canada.

In 1867, by the Act which created the Confederation
known as the Dominion, the Province of Canada was
redivided, so that the part which had formely constituted the

RULES OF APPEAL FOR THE COLONIES, ETC. 39

province of Upper Canada now constitutes the province of
Ontario ; and the part which had formerly constituted the
province of Lower Canada now constitutes the province of Province of
Quebec. By the same Act the provinces of New Brunswick °ntari°-
and Nova Scotia are brought within the Confederation. In Province of
1808, Her Majesty was authorised to accept a surrender of Quebec-
the lands and rights of the Hudson's Bay Co. (31 & 32 Viet.
(Imp.) c. 105, ss. 3, 4 and 5). In 1870, by an Order in wick.
Council, Rupert's Land and the North West Territories were Province of
admitted into the Dominion, and constituted the province of Nova Scotia-
the North West Territories. The province of Manitoba was
carved out of this territory and made a separate province of to'ries.
the Dominion by 33 Yict. (Dom.) c. 3 ; British Columbia Province of
was added by Order in Council dated May 16, 1871 ; Manitoba.
Prince Edward Island, by Order in Council dated July 26,
1873; and, by Order in Council of July 31, 1880, all
British territories and possessions in North America not Prince Ed-
already included in the Dominion, and all adjacent islands, ward I8lan
with the exception of Newfoundland and its dependencies,
were made part of the Dominion of Canada. Alberta and Alberta.
Saskatchewan were carved out of the North- Western Provinces ^fn at<
and made separate provinces by Acts of the Canadian Parlia-
ment in 1905 (5 Edw. VII. c. 3 and c. 42). By sect. 146
of the British North America Act, His Majesty is empowered
to admit Newfoundland into the Dominion on addresses from
the Parliaments of Canada and of Newfoundland.

Each province has its separate local legislature with power
to alter its constitution, except in respect of the office of
Lieutenant-G overnor who represents the Crown ; and also
returns its representatives to the Dominion Parliament.
The provincial legislatures possess the exclusive right to
make laws on certain matters of local interest, but the
Dominion Parliament possesses the exclusive right in certain
matters of general interest. Each province has its own
courts of justice, from which appeals lie direct to the
Sovereign in Council. See infra. The British North s. c. of
America Act (sect. 101) authorised the creation of a general r>omlnlon'
Court of Appeal for Canada and the establishment of any
additional courts. By 38 Viet. (Dom. 1875) c. 11, the
Supreme Court of Canada, to which appeals lie from the
superior courts of all the provinces of Canada, was accord-

THE PRACTICE OF THE PRIVY COUNCIL.

Supreme
Court of
Canada.

Appeal.

From final
judgments.

ingly established. (See Rev. St. of Can., G Edw. VII., 1906,
c, 139, ss. 35 and 36.) There is no appeal as of right from
the Supreme Court to His Majesty in Council ; but the
royal prerogative, except in regard to criminal cases, is
preserved. Special leave must be obtained from the Privy
Council whenever an appeal has been made to the Supreme
Court.

The jurisdiction of the Supreme Court of Canada is pro-
vided for by statute as follows (Rev. St. of Can., 1906,
c. 139) :

Sect. 35. The Supreme Court shall have, hold, and
exercise an appellate, civil, and criminal jurisdiction
within and throughout Canada.

It was held in Crown Grain Co., Ltd. v. Day that a
statute of Manitoba, enacting that in suits relating to liens
the judgment of a Manitoban Court of King's Bench should
be final and that no appeal should lie therefrom, could not
circumscribe the appellate jurisdiction granted by a Dominion
Act (1908, A. C. 504).

36. Except as hereinafter otherwise provided, an
appeal shall lie to the Supreme Court —

(a) From any final judgment of the highest court
of final resort now or hereafter established in
any province of Canada, whether such court
is a Court of Appeal or of original jurisdic-
tion, in cases in which the court of original
jurisdiction is a superior court ;
Provided that (a) there shall be no appeal from a
judgment in any case of proceedings for or upon a
writ of habeas corpus, certiorari, or prohibition arising
out of a criminal charge, or in any case of proceedings
for or upon a writ of habeas corpus arising out of any
claim for extradition made under any treaty ; and
(b) there shall be no appeal in a criminal case except
as provided in the criminal code.

Section 37 provides for appeals from final judgments
where the court of original jurisdiction is not a

RULES OF APPEAL FOR THE COLONIES, ETC. 41

superior court upon certain conditions which vary in
each province.

Section 38 provides for appeals from a judgment of
the highest court in any province if it is a superior court :

(a) Upon any motion to enter a verdict or non-suit Points

, ., , . , reserved.

upon a point reserved at the trial ;

(b) Upon any motion for a new trial upon the Motion for

ground that the judge has not ruled according
to law ;

judicial proceeding originally instituted in any
superior court of equity in any province of
Canada other than the province of Quebec,
and from any judgment in any action, suit,
cause, matter or judicial proceeding, in the
nature of a suit or proceeding in equity,
originally instituted in any superior court in
any province of Canada, other than the
province of Quebec ;

39. Except as otherwise provided, an appeal shall
lie to the Supreme Court :

(a) From the judgment upon a special case, unless Upon a

the parties agree to the contrary, and the special case<
Supreme Court shall draw any inference of fact
from the facts stated in the special case which
the court appealed from should have drawn ;

(b) From the judgment upon any motion to set Motion to set

aside an award, or upon any motion by way aside award-
of appeal from an award made in any
superior court in any of the provinces of
Canada, other than the province of Quebec ;

for or upon a writ of habeas corpus, certiorari damns,' am?"

or prohibition not arising out of a criminal municipal
, bye-laws,

charge ;

(d) In any case of proceedings for or upon a writ
of mandamus ; and

THE PRACTICE OF THE PKIVY COTOCTL.

(e) in any ease in which a bye-law of a municipal
corporation has been quashed by rule or order
of court, or the rule or order to quash has
been refused after argument.

40. In the province of Quebec an appeal shall lie to
the Supreme Court from any judgment of the Superior
Court of Review, when that court confirms the
judgment of the court of first instance, and its judg-
ment is not appealable to the Court of King's Bench,
but is appealable to His Majesty in CounciL

41. The appeal shall lie to the Supreme Court from
the judgment of any court of last resort created under
a provincial legislature to adjudicate concerning the
ajtHWpm'Nrnt of property for provincial or municipal
purposes, in cases where the person or persons pre-
siding over such court is or are by provincial authority
authorised to adjudicate, and the judgment appealed
from involves the assessment of property of a value of
not leas than 10,000 dollars.

.-.; :.;:ii tote 42.— (1) Except as otherwise provided in this Act
or in tf¥£ A^t providing for the appeal, no appeal yhall
lie to the Supreme Court but from the highest court
of last resort having jurisdiction in the province in
which tlij» action, suit, CT™^% matter, or other judicial
proceeding was originally instituted, whether the judg-
ment or dg*i«iftn in such action, suit, cause, matter
or other judicial proceeding was or was not a proper
subject of appeal to such highest court of last resort,
(2) Provided thai an appeal shall he directiy to the
Supreme Court (if) from the judgment of the court of
:rlrii.i! ^ri^Ii :::;:: \.~ i^n: :: T i:::— ~.:._:.:: inv
intermediate appeal being had to any intermediate
court of appeal in the provinces).
» 48.— (1) Mo appeal shall fie to the Supreme Court

RULES OF APPEAL FOR THE COLO:NTES, ETC. 48

from any judgement rendered in the province of
Quebec in any action, suit, cause, matter, or other
judicial proceeding, unless the matter in controversy :

(a) Involves the question of the validity of an Act Validity of

of the Parliament of Canada, or of the Legis-
lature of any of the provinces of Canada, or
of an Ordinance or Act of any of the councils
or legislative bodies of any of the territories
or districts of Canada ; or

(b) Relates to any fee of office, duty, rent, revenue Fees to the

or any sum of money payable to His Majesty,
or to any title to lands or tenements, annual etc.
rents, or such like matters or things where the
rights in future might be bound.

_ In the province of Quebec whenever a right to
appeal is dependent on the amount in dispute such
amount shall be understood to be that demanded and
not that recovered, if they are different.

48. No appeal shall lie to the Supreme Court from any Appeals from
judgment of the Court of Appeal for Ontario, unless : Ontario.

(a) The title to real estate or some interest therein is in
question.

(b) The validity of a patent is affected.

(d) The matter in question relates to the collecting of an
annual or other rent, customary or other duty or fee, or a
like demand of a general or public nature affecting further
rights ; or

(e) Special leave of the Court of Appeal for Ontario or of
-upreme Court of Canada to appeal at such last-
mentioned court is granted (00 & 01 Viet. c. 34).

Whenever a right to appeal is dependent upon the amount
in dispute, such amount shall be understood to be that
demanded and not that recovered, if they are different.

59. The judgment of the court shall in all cases be Judgment to
final and conclusive, and no appeal shall be brought
from any judgment or order of the court to any court

THE PRACTICE OF THE PRIVY COUNCIL.

Jurisdiction
in constitu-
tional ques-
tions.

Notice of
question
referred
which

of appeal established by the Parliament of Great
Britain and Ireland, by which appeals or petitions to
His Majesty in Council may be ordered to be heard,
saving any right which His Majesty maybe graciously
pleased to exercise by virtue of his royal prerogative.
It is this section which reserves the right to the Judicial
Committee to grant special leave to appeal.

60. — (1) Important questions of law or fact touching
(a) the interpretation of the British North America
Acts, 1867 — 1886 ; or (b) the constitution or inter-
pretation of any Dominion or provincial legislature ;
or (c) the appellate jurisdiction as to educational
matters by the British North America Act, 1887, or by
any other Act or law vested in the Governor in Council ;
or (d) the powers of the Parliament of Canada or of
the legislatures of the provinces, or of the respective
governments thereof, whether or not the particular
power in question has been or is proposed to be
executed ; or (e) any other matter, whether or not in
the opinion of the court ejusdem generis with the fore-
going enumerations with reference to which the
Governor in Council sees fit to submit any such question,
may be referred by the Governor in Council to the
Supreme Court for hearing or consideration ; and any
question touching any of the matters aforesaid so
referred by the Governor in Council shall be con-
clusively deemed to be an important question.

(2) When any such reference is made to the court,
it shall be the duty of the court to hear and consider
it and to answer each question so referred, and the
court shall certify to the Governor in Council for his
information its opinion on each such question with
the reason for each such answer, and such opinion
shall be pronounced in like manner as in the case of a
judgment upon an appeal to the said court.

(3) In case any such question relates to the consti-
tutional validity of any Act which has heretofore been
or shall hereafter be passed by the legislature of any

RULES OF APPEAL FOR THE COLONIES, ETC. 45

province, or of any provision in any such Act, or in concerns
case, for any reason, the government of any pro- pro
vince has any special interest in any such question,
the Attorney-General of such province, or, in the case
of the North West Territories, the Lieutenant-
Governor thereof, shall be notified of the hearing, in
order that he may be heard if he thinks fit.

(4) The court shall have power to direct that any Notice to
person interested, or, where there is a class of persons forested
interested, any one or more persons as representatives

of such class, shall be notified of the hearing upon
any reference under this section, and such persons
shall be entitled to be heard thereon.

(5) The court may, in its discretion (<?), request any Appointment
counsel to argue the case as to any interest which is

affected and as to which counsel does not appear, and
the reasonable expenses thereby occasioned may be
paid by the Minister of Finance and Keceiver-General
out of any moneys appropriated by Parliament for
expenses of litigation.

(6) The opinion of the court upon any such Appeal,
reference (/), although advisory only, shall, for all
purposes of appeal to His Majesty in Council be
treated as a final Judgment of the said Court between
parties.

(e) Intervention by leave of the Court. — In a case where a collusive
action had been instituted in the Supreme Court of British Columbia
with the view of obtaining a declaration that a certain enactment of
the provincial legislature prohibiting the employment of Chinamen
below ground was ultra vires, the Attorney-General of the province
appeared by leave of the court, and protested against the validity of
the enactment being raised in a friendly and collusive action, and
cross-examined the witnesses. The court upheld the validity of the
enactment, and on appeal to the Judicial Committee from the full
court, which had affirmed that decision, the Attorney- General
petitioned the Queen for leave to intervene in such appeal, and an
order was made that he should be allowed to intervene, and to put in
such case as he might be advised, and to appear by counsel on the
hearing of the appeal Union Colliery Co. v. Bryden, (1899) A. C.
at p. 584.

(/) Special leave should be asked in such cases. See Manitoba
School Case (Bropfiy v. Att.-Gen. of Manitoba), (1895) A. C. 202 ; Alt.-
/ Ontario v. Att.-Gen. of Dominion and Brewers and Distillers,
(1896) A. C. 348.

THE PRACTICE OF THE PRIVY COUNCIL.

Conditions
of appeal
from the
Supreme
Court.

Where alter-
native right
of appeal
to P. C. or
Supreme
Court.

WHEN LEAVE TO APPEAL GRANTED.

The principles upon which the Judicial Committee grants
leave to appeal from the judgment of the Supreme Court
of Canada (and of the highest federal court in the other
self-governing dominions) were laid down in the case of
Prince v. Gagnon (L. R. 8 A. C. 103), by Lord Fitzgerald.
" Their lordships, he said, are not prepared to advise His
Majesty to exercise his prerogative by admitting an appeal
to His Majesty in Council from the Supreme Court of the
Dominion, save where the case is of gravity involving
matter of public interest or some important question of law,
or affecting property of considerable amount, or when the
case is otherwise of some public importance or of a very
substantial character." This statement of principle was
repeated by Lord Davey in Clergue v. Murray (L. R. 1903,
A. C. p. 521), and also in Victoria Railway Commissioners
v. Brown (1906, A. C., p. 381).

Special leave to appeal has been recently granted in
accordance with this rule where there was an inter-
governmental controversy between the Dominion and the
province of Ontario. The Dominion of Canada v. The
Province of Ontario (1910, A. C. 637) ; where there was
a question involving the liability of members of the town
council of Montreal to refund certain moneys alleged to
have been expended without proper authority (Lapointe v.
Larin, The Times, February 19, 1910); where railway
interests of enormous value were involved (Canadian Pacific
Railway Co. v. The City of Toronto, The Times, July 23,
1910). But leave to appeal has been refused in a case
where the Supreme Court reversed the decision of the Chief
Justice and Court of Appeal of Ontario in a suit brought by
a widow for damages in respect of injuries to her husband
who was killed in a railway accident. The petition was
dismissed on the ground that the case did not raise matter
of general public interest (cf. Grand Trunk Railway Co.
of Canada v. Fralick, The Times, July 26, 1910).

There being in many cases an alternative right of appeal
from the court in the colony to the Supreme Court of
Canada or to the Privy Council, the Judicial Committee has
recognised a distinction as to the grounds required for

RULES OF APPEAL FOR THE COLONIES, ETC. 47

giving leave to appeal between cases where the petitioner
seeks to bring an appeal from the Supreme Court to which
he voluntarily resorted, and cases where he desires to appeal
against the judgment of that Court where either he was
compelled by law to proceed there initially or he was the
unsuccessful respondent before it. " In the case of
Consumer's Cordage Co., Ltd. v. Connolly, 1901, it was said
that where a person has elected to go to the Supreme
Court, it is not the practice to allow him to come to this
Board except in a very strong case. It is different where
a man is taken to the Supreme Court because he cannot
help it. But where a man elects to go to the Supreme
Court, having his choice whether he goes there or not, this
Board will not give him assistance except under special
circumstances." Per Lord Davey in Clergue v. Murray,
(1903, A. C. p. 52) ; cf. WiU lam Swing & Co. v. The Dominion
Bank (1906, A. C. 80), and The Canadian Pacftc Railway
Co. v. Blaine (1906, A. C. 453).

In a note to the report of the case of Clergue v. Murray
it is stated that special leave to appeal from the Supreme
Court of Canada was granted in two cases about the same
time to petitioners who had carried an appeal to the Supreme
Court. In both cases, however, the appeal lay by the
Canadian statute in the first place to the Supreme Court.
Calgary a ad Edmonton Railway Co. v. Reg em ; Hamburg-
American Steam Packet Co. v. Regem (1903, A. C., p.
523).

In a recent petition for special leave to appeal to the Appeal in
Privy Council from a decision of the Exchequer Court of first Place
Canada, the Judicial Committee intimated that they thought
that the petitioner should first appeal to the Supreme Court of
Canada, to which there was an alternative right of appeal-
ing ; and then, if it were necessary, to His Majesty in
Council (Burrard Power Co. v. Regem, S. J. 53, p. 689).
The question at issue involved very important water-
rights which were contested between the Dominion and the
province of British Columbia ; and though the case was
eminently suitable for the consideration of the Judicial
Committee, the course taken had the advantage of avoiding
any possible conflict of authority between it and the Supreme
Court of Canada. If the Committee had granted leave to

48 THE PRACTICE OF THE PRIVY COUNCIL.

appeal in the first instance, it would have been possible for
a subsequent appeal on the same point to be taken to the
Supreme Court and a contrary decision there arrived at.
This awkward conflict of decision between the Privy
Council and the Supreme Court of a dominion actually
occurred in the case of the Australian Commonwealth
(see p. 69) ; and it has been suggested that it would be a
salutary rule for the Judicial Committee to decline to enter-
tain any appeal over the head of the Supreme Federal
Court, save in a very exceptional case where there is litigation
between the Dominion government and a provincial govern-
ment. In such cases the Privy Council might be deemed
to be the best arbiter. After the case in which this ruling
was given had been taken to the Supreme Court of Canada,
leave to appeal from the decision of that tribunal was
ultimately given by the Judicial Committee.

Terms of ^s a^ aPPea^s fr°m tne Supreme Court of Canada can

granting only be brought by special leave of the Judicial Committee,
the amount of the security for the appeal and the other
conditions precedent to lodging the appeal are in the
discretion of the Judicial Committee, and no rules have been
issued by an Order in Council dealing with the matter, save
those in the common form relating to the preparation of the
record and the payment of costs.

The Ex- The Act which created the Supreme Court (1875) con-

chequer tinned the existence of the Exchequer Court which, before

the creation of the Supreme Court, was the chief appellate
tribunal in Canada. The constitution of the court is now
regulated by c. 140 of the Rev. Stat. Can. 1906. It has
exclusive jurisdiction of any matter which might in
England be the subject of a suit or action against the
Crown, and in cases of patents and copyrights ; and it has
concurrent jurisdiction with the Supreme Court in a number
of cases. By the Admiralty Act (c. 141 of the E. S. C.),
the Exchequer Court is constituted a colonial Court of
Admiralty, and the decisions of the court in this capacity
are subject to appeal to the Privy Council. Notwithstanding
the provisions of the Canadian Supreme and Exchequer Courts
Act, 1875 (s. 47) with respect to the finality of judgments
of the Supreme Court, an appeal lies of right under s. 6 of
the Colonial Court of Admiralty Act, 1890, from a judg-

RULES OF APPEAL FOR THE COLONIES, ETC. 49

merit of the Supreme Court, where pronounced on an appeal
from the Exchequer Court in its Admiralty jurisdiction.
Rifhdieu and Ontario Navigation Co. v. Owners of S3. Cape
Breton, (1007) A. C. 12. Special leave has not to be asked
in such cases. (See pp. 367 — 308.)

It is doubtful whether there is an appeal to the Privy Criminal
Council in criminal cases from Canada. The British North cases'
America Act did not curtail the prerogative of appeal in any
way, but it was enacted by the Dominion Act of Parliament
(ol Viet. c. 4:-i ; R. S. C., c. 146G, s. 1025) as follows :—
" Notwithstanding any royal prerogative or anything
contained in the Interpretation Act, or in the Supreme
Court Act, no appeal shall be brought in any criminal
case from any judgment or order of any court in Canada to
any court of appeal or authority by which in the United
Kingdom appeals or petitions to His Majesty in Council
may be heard."

It is, however, well nigh certain that this enactment was
not technically effective to exclude the prerogative to grant
leave to appeal from the judgment of a provincial court
in a criminal case which existed before the Act in virtue
of the Imperial statute 7 & 8 Viet. c. 69, which overrides
local Acts. As the prerogative in such a case is not
expressly barred, it is probable that it still exists, and that
even in the case of a decision of the Supreme Court of
Canada in a criminal case the right of appeal to the Privy
Council has not been effectively taken away. The Judicial
Committee has of recent years entertained applications for
leave to appeal from the judgments of provincial courts
in a criminal case when there were circumstances that
brought the case within the conditions required for an
exercise of the prerogative. Of. Townsend v. Cox, (1907)
A. C. 514, where, in refusing special leave to appeal from a
decree of the Supreme Court of Nova Scotia in a criminal
matter, the Judicial Committee did not raise the ground of
absence of jurisdiction. Cf., too, R. v. Walker (The
Times, July 27, 1909), where again, in rejecting a
petition for special leave to appeal in a criminal matter
brought from the Supreme Court of British Columbia, the
Committee did not suggest that they had not jurisdiction,
but stated that the case was not a suitable one for their
p.c. 4

THE PRACTICE OF THE PRIVY COUNCIL.

Habeas

corpiis

appeals.

interference. The petition was brought by the Crown against
an order for a new trial, and the Crown urged that, as no
appeal to the Supreme Court of Canada was available in
a criminal matter from the Supreme Court of British
Columbia, the prerogative of the King to grant special
leave should be exercised. But the Board, without dealing
with all the questions involved, said that in any case they
would be very slow to interfere at the instance of the
prosecution with a new trial directed by the Court of
Appeal in favour of an accused man.

The Judicial Committee has recently exercised the power
of reviewing the grant of a writ of habeas corpus which had
been made by the Court of King's Bench in Manitoba in
respect of a foreign criminal who had been committed for
extradition. Att.-Gen.for Dominion of Canada v. Fedorenko,
(1911) A. C. 735. The proceedings were ex parte, and
the question whether the appeal was in a criminal matter
and therefore barred was not raised.

Under sect. 56 of the Railway Act, 1901, an appeal lies
from the Railway Board of Canada to the Supreme Court ;
railway cases, under sub-sect. 3 the Supreme Court is to determine by its
judgment the question submitted ; and under sub-sect. 5 to
certify its opinion to the Board, which is to make an order
in accordance therewith, and that order by sub-sect. 9 is
declared to be final. It has, however, been held that the
provisions of the section are not sufficient to take away
the prerogative of the Crown to grant leave to appeal from
the judgment of the Supreme Court. Canadian Pacific
Railway Co. v. Toronto Corporation and Grand Trunk
Railivay Co. of Canada, (1911) A. C. 461.

Appeal from
Supreme
Court in

THE CANADIAN PROVINCES.

While the right of appeal from the Supreme Court of
Canada is limited to cases where special leave is granted
by the Judicial Committee, a larger right of appeal has
been provided from the Supreme Court of each province of
the Dominion. It has been mentioned that in many cases
there is an alternative right of appealing to the Supreme
Court of Canada and the Privy Council from the provincial
court, and the appellant may elect to which of the two

RULES OF APPEAL FOR THE COLONIES, ETC. 51

tribunals he will go. The rules relating to the bringing
of appeals to the Privy Council have been rendered
uniform for the most part by the Orders in Council issued
during the last two years to that end, but in the two
oldest provinces of Canada a special procedure applies, and
to set out briefly the particular laws and
Orders in Council affecting each province.

ALBERTA.

The Province of Alberta was created by an Act of the Rules of
Canadian Parliament (4 & 5 Edw. VII.) ; and in 1907, by Appeal to
an Act of the Provincial Legislature, a Superior Court of
Civil and Criminal Jurisdiction was constituted, called the
Supreme Court of Alberta. By Order in Council of
January, 1910, an appeal lies of right in all civil cases
from any final judgment of this court to the Privy Council,
or where the matter in dispute in the appeal amounts to
or is of the value of 1,000/. sterling or upwards, or where
the appeal involves, directly or indirectly, some claim or
question respecting property or some civil right amounting
to or of the value of 1,OOOZ. or upward ; and at the discretion
of the court from any other judgment of the court, whether
final or interlocutory, if the court is of opinion that, by
reason of its general public importance or otherwise, it
should be submitted to His Majesty in Council for decision.
Application for leave to appeal is to be made within twenty-
one days from the date of the judgment. The Order adopts
the Colonial Appeal Rules (Chapter II.)

BRITISH COLUMBIA (including
Vancouver's Island).

In 1866 the Crown colonies of British Columbia and British
Vancouver's Island were united by Imperial statute (29 & Columbia.
:;D Viet. c. 67, s. 3), and in 1871 became a province of the
Dominion of Canada. The Supreme Court of Civil Justice Supreme
of the Colony of Vancouver's Island and the Supreme Court Court-
of Civil Justice of British Columbia have been merged, and
are called the Supreme Court of British Columbia.

The Order in Council regulating appeals from the o. in C. 1911;

Supreme Court of British Columbia to the Privy Council appeals to

J P. C.

4—2

THE PRACTICE OF THE PRIVY COUNCIL.

Creation of
Province of
Manitoba.

Courts.

Appeals to
P. C.

is dated January 23, 1911, and repeals an earlier Order
in Council dated 1887.

The appeal as of right lies from any final judgment of
the court where the matter in dispute amounts to or is of
the value of 500?. Application for leave to appeal is to
be made by notice or petition within twenty-one days from
the date of the judgment to be appealed from. The other
conditions follow the common form.

MANITOBA.

The Province of Manitoba was created by Imperial
statute, 34 & 35 Viet. c. 28 (British North America Act,
1871), ss. 2, 5, confirming the Manitoba Act, 33 Viet.
c. 3 (Dom.).

By an Act of the Province in 1906 (6 Edw. VII. c. 18)
there was established a Court of Appeal for Manitoba,
which has the exclusive appellate jurisdiction in all matters,
civil and criminal, that had hitherto been exercised by the
Court of King's Bench. The conditions of appeal from the
court to the King in Council are fixed by an Order in
Council dated November 28, 1910, which revokes an
earlier Order in Council dealing with appeals dated
November 26, 1892.

The appeal as of right lies from a final judgment of the
Appeal Court where the matter in dispute is of the value
of 1,000?. or upwards. The other conditions follow the
common form.

NEW BRUNSWICK.

New Brunswick was ceded by France to England by
the Treaty of Paris, 1763, and became a province of the
Dominion of Canada under a British North America Act,
1867. The Order in Council regulating appeals to the
Privy Council from the Supreme Court of New Brunswick
is dated November 7, 1910, and revokes the Order
in Council of November 27, 1852, which had hitherto
regulated appeals.

The appeal lies as of right where the matter in dispute
amounts to 300/. sterling or upwards ; application for leave
must be made within twenty-one days ; in other respects
the order follows the common form.

RULES OF APPEAL FOR THE COLONIES, ETC. 53

NOVA SCOTIA.

This colony was made a province of the Dominion by the
British North America Act, 1867. The island of Cape
Breton forms part of the province. In re Cape Breton
(1846% 5 Moo. 259; 6 S. T. 283.

The Supreme Court is constituted by the Judicature
Act, 1884 (Rev. Stat. 1884, c. 104). An appeal lies to
the full court.

The conditions of appeal are now regulated by an Order Appeal to
in Council of July, 1911, in common form, which repeals p- c-
the former Order in Council of 1863. The appealable
amount is 500/., and leave to appeal must be made by
motion or petition within twenty-one days of the judgment
to be appealed from.

ONTARIO (Upper Canada).

Ontario forms part of the territories of Canada ceded
by France by the treaty of Paris, 1763 ; but the
entire territory was till 1791 known as Canada. By the
Act of 1867, Upper Canada was finally separated from
Canada and became a separate province. In 1794 the Courts,
courts of King's Bench and of Appeal of Upper Canada
were created ; and under the Judicature Act of Ontario the
High Court of Justice of Ontario and the Court of Appeal
for Ontario were continued, and together they form the
Supreme Court of Judicature (R. S. Ontario, 1897, c. 31).
Appeals to His Majesty in Council were originally regu-
lated by the Provincial Act (34 Geo. IV. c. 2). In 1910,
however, an act of the provincial legislature (10 Edw. TIL,
c. 24) was passed, which re-enacts most of the old con-
ditions of appeal, and repeals the chapter (48) in the
revised statutes of the colony which had hitherto governed
appeals.

The statute provides as follows : — Appeals Act.

1. An appeal lies (g) when the matter in con-

(g) It will be observed that no leave has to be asked or obtained on
appeal from Ontario. The provision is that " an appeal lies."
This accords with the Proclamation of 1763, under which the right of
appeal from the Canadas arose. The Proclamation had the same

64 THE PRACTICE OF THE PRIVY COUNCIL.

troversy in any case exceeds the sum or value of
$4,000 (h), as well as in any case where the matter in
question relates to the taking of any annual or other
rent, customary or other duty, or fee, or any like
demand of a general and public nature affecting future
rights, of what value or amount soever the same may
be, and except as aforesaid no appeal shall lie to His
Majesty in his Privy Council.

2. No such appeal shall be allowed until the appellant
has given security in $2,000 to the satisfaction of the
court appealed from, and that he will effectually
prosecute the appeal, and pay such costs and damages
as may be awarded in case the judgment appealed
from is confirmed.
Execution to 3. Upon the perfecting of such security (i) execu-

be stayed. ,. , . . . .

tion shall be stayed in the original cause.

force as a statute, per Lord Mansfield, Campbell v. Hall, 1 Cowp. 204 ;
and cf. St. Catherine's Milling and Lumber Co. v. The Queen, (Ont.
1888) 14 A. C. at p. 54. But the Court of Appeal must exercise its
judgment whether any case is applicable or not, Gillett & Co. v.
Lumsden, (1905) A. C. 601. By the rules and orders passed by the
Judicial Committee, dated December 21, 1908, it is provided by
rule 2, that " all appeals shall be brought either in pursuance of leave
obtained from the court appealed from or, in the absence of such
leave, in pursuance of special leave to appeal granted by His Majesty
in Council upon a petition in that behalf presented by the intending
appellant." The Registrar of the Privy Council has, however, advised
the Registrar of the Court of Appeal for Ontario that the rule quoted
is not intended to interfere with what has been the practice heretofore
on appeals from the Court of Appeal to the Privy Council.

(h) Under the old Act, by which the Court of Appeal was only
empowered to deal with cases which came within a definite value
or a special class, it was held that it could not take any steps to
admit an appeal not within those limits, though it was of a kind
in which the Judicial Committee have often considered it proper to
grant special leave. Where the sole question in two actions was as
to the validity of an order by the Railway Committee of the Privy
Council of Canada requiring the plaintiffs to build a bridge, it was
held that an appeal "did not lie as of right to the Privy Council.
Canadian Pacific Railway Co. and Grand Trunk Railway Co. v. City
of Toronto (1909), 19 0. L. R. 663, and City of Toronto v. Toronto
Electric Light Co. (1906), 11 0. L. R. 310. Under the new Act by
which the appeal as of right is subject to much the same conditions,
these decisions have been followed in Beardman v. City of Toronto
(see Canada Law Journal, 1911, p. 63, and 21 O. L. R. 505). In
all such cases special leave to appeal must be obtained from the
Judicial Committee.

(*) Under the authority of sect. 15 of the Law Courts Act, 1896,

RULES OF APPEAL FOE, THE COLONIES, ETC.

4. Subject to rules to be made by the judges of Practice of
the Supreme Court, the practice applicable to staying pea? to* apply.

the Consolidated Rules of Practice and Procedure of 1897 were revised
and consolidated. See R. S. Ont, 1897, c. 51, s. 129. The rules in
force prior to April 16, 1895, as to sta3"ing execution upon appeals,
are contained in the Xew Consolidated Rules, and are set out below.

NEW CONSOLIDATED RULES — STAY OF EXECUTION.
Sect. 27. Upon the perfecting of such security-, execution shall
be stayed in the original cause, except in the following cases : —

(1) If the judgment appealed from directs the assignment or Where judg-

delivery of documents or personal property, execution ment directs
shall not be stayed until the things directed to be assigned assignment,
or delivered have been brought into the court appealed etc.
from, or placed in the custody of such officer or receiver as
that court or a judge appoints, nor until security has been
given to the satisfaction of that court, and in such sum as
it may be directed, that the appellant will obey the order
of the Court of Appeal.

(2) If the judgment appealed from directs the execution of a Where judg-

conveyance or any other instrument, execution shall not ment directs

be stayed until the instrument has been executed and conveyance,

deposited with the proper officer of the court appealed etc.
from, to abide the judgment of the Court of Appeal.

(3) If the judgment appealed from directs the sale or delivery Where judg-

of possession of real property or chattels real, execution ment directs
shall not be stayed until security has been entered into to sale, etc.
the satisfaction of the court appealed from, and in such
sum as that court or a judge directs, that during the
possession of the property by the appellant, he will not
commit nor suffer to be committed any waste on the pro-
perty, and that if the judgment be affirmed he will pay
the value of the use and occupation of the property from
the time of the appeal until the delivery of the possession
thereof, and also, in case the judgment is for the sale of the
property and the payment of a deficiency arising from the
sale, that the appellant will pay the deficiency.

(4) If the judgment appealed from directs the payment of Where judg-

money, execution shall not be stayed until the appellant ment directs
has given security, to the satisfaction of the court payment,
appealed from, or a judge, that if the judgment, or any
part thereof, be affirmed, the appellant \\i\l pay the amount
thereby directed to be paid, or the part thereof as to
which the judgment may be affirmed if it be affirmed only
as to part, and all damages awarded against the appellant
on the appeal.

Sect. 28. When the security has been perfected and allowed,
any judge of the court appealed from may issue his fiat to the
sheriff to whom any execution on the judgment has issued to
. the execution, and the execution shall therebj' be stayed
whether a levy has been made under it or not ; but if the grounds
of appeal appear to be frivolous, the court whose judgment is
appealed from, or a judge upon motion on notice, may order
execution to issue or to be proceeded with.

If at the time of the receipt by the sheriff of the fiat, or a copy
thereof, the money has been had or received by him, but not
paid over to the party who issued the execution, the party appeal-

THE PRACTICE OF THE PRIVY COUNCIL.

Rev. Stat.
c. 51.

Approval of
security.

Costs.

Inter-pro-
vincial
questions.

executions upon appeals to the Court of Appeal
shall apply to an appeal to His Majesty in his Privy
Council.

5. A judge of the Court of Appeal shall have
authority to approve of (,;') and allow the security to
be given by a party who intends to appeal to His
Majesty in his Privy Council, whether the application
for such allowance be made during the sitting of the
said court, or at any other time.

6. The preceding sections shall not apply to an
appeal from a judgment of any court on a reference
under the constitutional questions (/c).

7. Costs awarded by His Majesty in his Privy
Council upon an appeal shall be recoverable by the
same process as costs awarded by the Court of
Appeal.

Under 54 Viet. c. 2 (1891, Onfc.), on questions arising as
to settlement of accounts between the Dominion and the
provisions of Ontario and Quebec, and between the two
provinces, an appeal was given from the arbitrators pro-
ceeding " on their view of a disputed question of law " to
the Privy Council, " in case their lordships are pleased to
entertain the appeal " (/).

ing may demand back from the sheriff the amount had or
received under the execution, or so much thereof as is in his
hands not paid over, and in default of payment by the sheriff
upon such demand, the appellant may recover the same from
him in an action for money had and received.
(j) Where the security has been once accepted in the court below,
objection cannot be taken in the Privy Council after respondent has
appeared to the order of revivor on death of appellant. Powell v.
Washburn (Upp. Can. 1838), 2 Moo. 199.

(k) Under the Act (53 Viet. (Ont.) c. 13), the Lieutenant-Governor
in Council may refer " any matter " for the opinion of the court.
Such opinion is to be " deemed a judgment of the court " from which
an appeal shall lie as in the case of a judgment in an action. In the
case of the Att.-Gen. for the Dominion v. Att.-Gen. for Ontario, (1898)
A. C. 247, the appeal to the Privy Council was allowed to be prose-
cuted without the usual restrictions, and no leave to appeal was asked
below, and no special leave was asked in England before the petition
of appeal was lodged.

(I) This provision ignores the constitutional rule that the appeal
lies to the Sovereign and not to the Privy Council. Att.-Gen. for the
Dominion v. Att.-Gen. for Ontario, (1897) A. C. at p. 208.

RULES OF APPEAL FOR THE COLONIES, ETC. 57

PRINCE EDWARD ISLAND.

This island was ceded by the French by the Treaty of
Paris, 1763, and it was admitted into the Dominion in 1873.
Civil and criminal jurisdiction is exercised by the Supreme
Court of Judicature of Priuce Edward Island. By the
Common Law Procedure Act, 1873, it is enacted : —

In all appeals to the Judicial Committee of the Privy Power of S. C.
Council, the judges of the Supreme Court shall make rules to make rules,
and regulations directing the mode of procedure, either pro
hw vifB or generally, as may be required, and as may not be To accord

inconsistent with the royal instructions and the rules and !*j£ ro/al

instructions.

mode of procedure of the Judicial Committee of the Privy
Council.

Xo rules, however, have been made by the judges. But Rules of
rules for the regulation of appeals from the Supreme Court ^PP8*1-
of Prince Edward Island were laid down in an Order in
Council, dated October 13, 1910, which are in the common
form. The appealable amount for an appeal of right is
5( M )/. or upwards. Application for leave must be made within
twenty-one days. Subject to the rules laid down in the Order
iu Council, it is for the judges of the Supreme Court to make
any rules they think necessary for the prosecution of appeals.

QUEBEC (Lower Canada).

Quebec was ceded to Great Britain by France by the
Treaty of Paris, 1703. By a proclamation of that year the Law in force.
English civil and criminal law was established, and the
right was reserved to all persons to appeal to the Sovereign
in all civil cases, subject to the usual limitations and restric-
tions. Some of the old French laws have been re-established
in the province (cf. Symes v. CuvilUcr. 0 A. C. 138). Following
the model of French jurisprudence, there is a code of Civil
Procedure for the province which was last revised under
57 Viet. c. 9. This code provides in detail for the regula-
tion of appeals from the various courts of the province to
the Privy Council, and no Order in Council has been
issued affecting the rules. The regulations for appeals from
Quebec are therefore peculiar and must be set out in detail.

The chief Appellate Court is the Court of King's Bench Courts.

58 THE PRACTICE OF THE PRIVY COUNCIL.

of Quebec, which is a court of error in criminal cases and
of appeal in civil cases. There is also an appeal from a
judgment of a Superior Court or a Circuit Court to the
Superior Court sitting in review. If in such a case the
judgment below is approved, the party is deprived of his
appeal to the King's Bench (Art. 1142a, and 54 Viet,
c. 48, s. 2), but he may appeal direct to the Privy Council
(Sec. 68a).

Appeals to The appeal in civil cases from final judgments of the

the P. C. King's Bench to the Privy Council is regulated by s. G8
(formerly Art. 1178) of the Code of Civil Procedure.
The rules regulating appeals are as follows : —

CODE of Civil Procedure of the Province of
Quebec, 1897.

Appeals from Sect. 46 (formerly Art. 1116). An appeal also (ni)
lies (to the Court of King's Bench) from interlocutory
judgments in the following cases :—

(1) When they in part decide the issues ;

(2) When they order the doing of anything which

cannot be remedied by the final judgment ;

(3) When they unnecessarily delay the trial of the

suit.

On Appeals to His Majesty.

Where appeal Sect. 68 (formerly Art. 1178). An appeal lies to His
to p. a* Majesty in his Privy Council from final judgments (n)

(m) See infra, Sec. 69. In appeals under this article there
must be a preliminary motion before the Appellate Court, in order
that that court may decide whether the particular judgment falls
properly within the terms of Art. 1116. GoUring v. La Banque
d'Hochelaga (Quebec, 1880), 5 A. C. at p. 373.

Interlocutory (n) Final judgment. — The Court of King's Bench of Quebec cannot

judgments. grant leave to appeal against an interlocutory order, except under

Arts. 1115 and 1116 of C. C. P. Goldring v. La Banque d'Hochelaga

(Quebec, 1880), 5 A. C. 371. In matters of insolvency there is no

appeal from the King's Bench of Quebec as of right hereunder. The

Insolvency Dominion Parliament has the power to abrogate such right (cf. British

matters. North America Act, 1867, ss. 91, 92), and has done so by 38 Viet.

RULES OF APPEAL FOR THE COLONIES, ETC. 59

rendered in appeal or error by the Court of King's
Bench : —

(1) In all cases where the matter in dispute relates

to any fee of office, duty, rents, revenue, or
any sum of money payable to His Majesty (o);

(2) In cases concerning titles to lands or tene-

ments, annual rents and other matters by
which the rights in future (p) of parties may
be affected ;

(3) In all other cases wherein the matter in dispute

exceeds the sum or value (q) of five hundred
pounds sterling.

(Dom.) c. 16, s. 128, and 40 Viet. (Dom.) c. 41, s. 28, which enacts that

the judgment of the Court of King's Bench in such cases shall be

"final." Gushing v. Dupuy (Quebec, 1880), 5 A. C. 409. In the

above case, Cuvillier v. Aylwin and subsequent cases were reviewed

as to the question whether the King's prerogative can be taken away

otherwise than by express words. Ibid. p. 417. The right of His King's

Majesty to grant special leave remains, since the enactment contains prerogative.

no words which purport to derogate from the prerogative of the King

to allow an appeal as an act of grace. Ibid. p. 420.

The motion for leave to appeal should, according to usage, be
made forthwith. Cf. Brewster v. Lamb, Stephen's Quebec Law
Digest, vol. 2, p. 72 ; Mullin v. Archambault (1867), 3 L. Can. L. J.,
p. 117. No appeal lies, as of right, under this section in the matter of
a penalty of imprisonment. Carter v. Molson (Quebec, 1883), 8 A. C.
530. A judgment refusing to set aside a writ of capias ad respon-
dendum issued under Arts. 798 and 801 of C. C. P. is not a final judg-
ment. Goldring v. La Banque d'Hochelaga (1880), 5 A. C. 371. It is
no objection to the right of a party to appeal to the P. C. that the
opponent has already obtained leave to appeal to the S. C. of the
Dominion. The City of Montreal v. Devlin (1878), 22 L. C. Jur. 136.

(o) An appeal lies from a decision on a petition of right. It. v.
Demers, (1900) A. C. 108.

(p) "Rights in future" — Ci.Sauvageau v. Gauthier (Quebec, 1874),
L. R. 5 P. C. 494.

Where leave to appeal was unduly granted by the Court of King's
Bench, the Judicial Committee, as the question raised was one of
importance, in the course of the argument, intimated that, upon a
petition for special leave being presented, they would advise Her
Majesty to grant leave. In such case fresh security as to costs of
appeal'has to be given. Carter v. Molson (Quebec, 1883), 8 A. C. 533.
But where leave has been given by the Court of Appeal in a question
below the appealable value, the appeal will be dismissed, unless it is
a desirable case for special leave. Allan v. Pratt (Quebec, 1888), 13
A. C. 780.

(q) " Value." — Art. 1178, sub-s. (3). As to calculating interest in
the judgment, see Boswell v. Kilborn (L. Can. 1859), 12 Moo. 467 ;
Quebec Fire Insurance Co. v. Anderson (L. Can. 1860), 13 Moo. 477.
But see Marois v. Allaire (1862), 6 L. C. J. 85, P. C. Appeal may be
made to the Privy Council when the amount demanded is less than

THE PRACTICE OF THE PRIVY COUNCIL.

Where judg-
ment affirmed
by Court of
Review
appeal lies to
P. C.

Appeal direct
to P. C. from
judgments in
Court of
Review.

Sect. 69 (formerly Art. 1178a). Causes adjudicated
upon in review (r), which are susceptible of appeal (s)
to His Majesty in his Privy Council, but the appeal
whereof to the Court of King's Bench is taken away
by sects, (t) 43 and 44, may nevertheless be appealed
to His Majesty.

500/., if the amount involved is greater. Bunting v. Hibbard (1865),
1 L. C. L. J. 60. Where the judgment is below the appealable amount,
there is no appeal, notwithstanding in default of payment the person
desiring to appeal was subject to contrainte par corps. Pacaud v.
Roy (1866), 16 L. C. R. 398, Q. B. To determine the appealable value
the correct course is to look at the judgment as it affects the interest
of the party who is prejudiced by it, and who seeks to relieve himself
from it by appeal. Macfarlane v. Leclaire, 8 Jur. N. S. 267.

(r) By Art. 494 of the Code of Civil Procedure of Quebec (34 Viet.
(Quebec) c. 4, s. 5), a review may be had — (1) upon every final judg-
ment from which an appeal lies (and see amendment, 54 Viet. c. 48 (2),
1890), "and from judgments of Circuit Court from 100 to 200 dollars");
(2) upon every judgment or order rendered by a judge in summary
matters under the provisions contained in the third part of this Code
(which deals with non- contentious business) ; (3) upon any judgment
rendered on any petition or motion to set aside or quash an attach-
ment before judgment or capias ad respondendum. The Revised
Statutes of Quebec, 1888, c. 2314 (a re-enactment of 37 Viet. c. 6, s. 2),
enacts, as to judgments given in a Court of Review : —

Causes susceptible of appeal to Her Majesty in Privy Council
may nevertheless be taken there directly by observing the same
precedent formalities and provisions, and subject to the same
conditions, as in the case of appeals to Her Majesty from judg-
ments of the Court of Queen's Bench sitting in appeal and error.
(s) Susceptible of appeal. — There is no appeal from a decision under
the Quebec Controverted Elections Act, 1875 (38 Viet. c. 38), of
which sect. 90 enacts that the judgment of the court sitting in review
shall not be susceptible of appeal. Theberge v. Laudry, (Quebec,
1876) 2 A. C. 102 ; and see Gushing v. Dupuy, supra, where the
Privy Council point out that their decision was rested rather on
the peculiarity of the subject-matter which affected the rights and
privileges of the legislative assembly than on the prohibitory words
of the statute. In Kennedy v. Purcell (1888), 59 L. T. 279, the Judicial
Committee pointed out that the intention to confine the decision
locally within the colony was as clear as to have the matter speedily
decided. Their lordships thought there were strong reasons why
such matters should be decided within the colony, and why the pre-
rogative of the Crown should not, even if it legally can, be extended to
matters over which it had no power, and with which it had no concern,
until the legislative bodies chose to hand over to judicial functionaries
that which was formerly settled by themselves. Before advising
such an assertion, their lordships intimated that they would require
to find indications of an intention that the new proceedings should so
follow the course of ordinary law as to attract the prerogative.
(0 The sects. 43 and 44 of the C. C. P. are as follows :—

Sect. 43. Unless where otherwise provided by statute, an
appeal lies to the Court of Queen's Bench, sitting in appeal, from
any final judgment rendered by the Superior Court, except : —

RULES OF APPEAL FOR THE COLONIES, ETC. 61

Sect. 1242 (formerly Art. 1179). The execution of Security, if
a judgment from which an appeal is taken to His stay>
Majesty in his Privy Council cannot be prevented or
stayed, unless the party aggrieved gives good and
sufficient sureties, within the delay fixed (u) by the
court which rendered the judgment, that he will
effectually prosecute the appeal, satisfy the condem-
nation, and pay such costs and damages as may be
awarded by His Majesty in the event of the judgment
being confirmed.

The security (x) must be received before one of the Security.

1. In matters of certiorari ;

2. In matters concerning municipal corporations or offices, as

provided in Article 1006 ;

3. In matters in which the sum claimed or value of the thing

demanded is less than two hundred dollars and in which
judgment has been rendered by the Court of Review ;

4. At the instance of any party who has inscribed in review

any cause other than those mentioned in the preceding
paragraph, and has proceeded to judgment on such
inscription, when such judgment confirms that rendered
in first instance.
Sect. 44. An appeal also lies to the Court of Queen's Bench

sitting in appeal, from judgments of the Circuit Court, in the

following cases : —

1. Where the sum claimed or the value of the thing demanded

amounts to or exceeds one hundred dollars, except in suits
for the recovery of assessments for schools or school-
houses, or for monthly contributions for schools, and in
suits for the building or repairing of churches, parsonages
and churchyards ;

2. When the demand is less than one hundred dollars, but

relates to fees of office duties, rents, revenues, or sums of
money payable to Her Majesty ;

3. When the demand, although less than one hundred dollars,

relates to titles to land or tenements, annual rents, or
other matters in which the rights in future of the parties
may be atfected ;

4. In all actions in recognition of hypothecs.
Nevertheless, no appeal lies to the Court of Queen's Bench in causes

of the Circuit Court susceptible of appeal in which judgment has been
rendered by the Court of Review.

(u) The delay fixed is generally six weeks if the parties are resident
in Quebec or Montreal, and eight weeks, or according to circumstances
if elsewhere. A judge in chambers has power to extend the time.
Mayor of Montreal v. Hubert, 21 L. Can. Jurist, pp. 86.

(x) The amount of security may be increased on good cause being
shown. Boswell v. Kilborn (I860), 7 L. C. J. 150 ; and 12 L. C. R.
Hil. As to amount, see The Quebec Fire Insurance Co. v. Anderson
( 1860), 7 L. C. J. 150, P. C.

If judgment
executed.

Security by

THE PRACTICE OF THE PRIVY COUNCIL.

judges of the court which rendered the judgment.
The sureties justify their solvency upon the real estate
which is described in the bail bond.

One surety suffices if he is owner of real estate
which he describes equal in value to the amount
of the security, over and above all charges and
hypothecs.

The judge who receives such security may order,
either on demand or otherwise, the production of the
registrar's certificate, the valuation rolls, and any other
documents for the purposes of the security, and is
bound to put such questions as he deems advisable to
the sureties. Such questions and the answers thereto
may be taken down in writing.

The appellant may, however, exempt himself from
furnishing such security by depositing an amount equal
to that required for the security, either in money, in
bonds of the Dominion or of the province, or in muni-
cipal debentures ; and such moneys, bonds, or deben-
tures are deposited either in the office of the court
which rendered the judgment, or with the sheriff, as
the judge may direct.

Sect. 1250 (formerly Art. 1180). The appellant may
also consent to the judgment being executed, and in
such cases may give security for the costs in appeal
only, under the same conditions as under Art. 1214 (y).

(y) Art. 1214 is as follows : — On the day fixed in the notice, the
appellant must give good and sufficient security that he will effectually
prosecute the appeal, that he will satisfy the condemnation and pay
all costs and damages adjudged in case the judgment appealed from
is confirmed ; or else he must declare in writing in the office of the court
whose judgment is appealed from, that he does not object to the
judgment rendered against him being executed, or he must file a copy
of any judgment ordering provisional execution of the judgment
appealed from, in which cases he is only bound to give security for the
payment of the costs in appeal, if he fails ; and, if the judgment is
reversed, the respondent who has caused the judgment to be executed
is bound to refund to the appellant the net amount only of the monies
levied by execution together with legal interest, or to restore the pro-
perty of which he was put in possession, together with the rents,
issues and profits since.

By a statutory enactment, whenever any person is obliged by law,

RULES OF APPEAL FOR THE COLONIES, ETC. 63

Sect. 1251 (formerly Art. 1181). The execution of No execution
any judgment appealed from cannot be prevented or s

stayed after six months (z) from the day on which the unless p. c.
appeal was allowed, unless the appellant files in the lodged.
office of the clerk of the court which rendered the
judgment, a certificate (a) signed by the Clerk of His
Majesty's Privy Council, or any other competent
officer, stating that the appeal has been lodged within
such d>elay, and that proceedings have been had
therein.

Sect. 125-2 (formerly Art. 1182). The clerk of the
court which rendered the judgment must register any
exemplification of a decree of His Majesty in his
Privy Council as soon as it is presented to him for that
purpose, without requiring any order to that effect
from the court which rendered the judgment, and
must send back the record in the case to the court
below, together with a copy of the exemplification
which has been registered as above mentioned.
C. S. L. C. c. 77, s. 54.

SASKATCHEWAN.

The Province of Saskatchewan was created by an Act of
the Canadian Parliament (4 & 5 Edw. VII. c. 42) 1905,
and by a Provincial Act of 1907 (7 Edw. VII. c. 8), a

by a judgment, or order to make a deposit, to pay costs, or to furnish guarantee
security before the courts, he may furnish security by an incorporated company,
surety or guarantee company which has an office in the province.
63 Viet. (Quebec, 1900), c. 44.

(z) Cf. St. Louis v. St. Louis (L. Can. 1836), 1 Moo. 143, holding that
the limitation is not imperative. Cf. Allan v. Platt, 32 L. Can. Jurist,
p. 57, and 3 Montreal, L. R. Q. B. p. 322.

(a) Where a transcript of the record had been forwarded within
the delay required, but the certificate had not been filed within such
required delay, the Court of Queen's Bench refused to order pro-
visional execution of the judgment. Jones v. Guyon (1867), 17
L. C. R. 377, Q. B.

Such delay is not absolute but directory. Jones v. Guyon (1866),
2 L. C. L. J. 161 , Q. B. When this certificate has been filed, the Court
of King's Bench cannot declare the appeal to be deserted. White v.
The Home Insurance Co. (1875), 19 L. C. J. 196.

64 THE PRACTICE OF THE PRIVY COUNCIL.

superior court of civil and criminal jurisdiction was con-
Appeals to stituted, called the Supreme Court of Saskatchewan. By an
Order in Council of October 1^, 1910, rules were made
for the regulation of appeals from the Supreme Court to
His Majesty in Council. An appeal lies by right when the
amount of the subject-matter of appeal is $4,000 and
upwards ; application for leave to appeal must be made
within fourteen days from the date of the judgment ; and
the amount of the security which the court may require
of the appellant is not to exceed $2,500. The other rules
are in common form.

NEWFOUNDLAND.

The colony of Newfoundland was established under
royal charter, granted to Sir Humphrey Gilbert in 1584, and
thus possesses the distinction of being the oldest colony
in the empire. Newfoundland with its dependencies, is
since September 1, 1880, the only remaining portion of
the British territories and possessions in North America
which has not been annexed to the Dominion of Canada.
Power is given by 30 & 31 Viet. (Imp.) c. 3, s. 146, to
admit it to the Dominion, but has not been exercised. The
legislative power is vested in a governor and a repre-
sentative legislature.

The Supreme Court, which was created by 32 Geo. 3,
c. 56, possesses all civil and criminal jurisdiction which
was conferred by the Act, 5 Geo. IV. c. 67, and by a charter
Appeals to issued thereunder of 1825. Provision for bringing appeals
from the Supreme Court to the Privy Council was made in
the charter, but these rules have now been revoked and
new regulations made by an Order in Council of
October 13, 1910, which are in the common form.
The appealable amount for an appeal as of right is 500/.,
and the limit of time within which application for leave
to appeal must be made is fourteen days from the date of
judgment. The Order adopts the Colonial Appeal Rules.

RULES OF APPEAL FOR THE COLONIES, ETC. 65

II. THE COMMONWEALTH OF AUSTRALIA.

The second of the great federations of the self-
governing dominions is the Commonwealth of Australia,
which was created by the Imperial Statute, the Australia
Constitution Act, 1900 (63 & 64 Viet. c. 12). It now
includes the States of New South Wales, Victoria, Queens-
land, South Australia and West Australia on the continent
of Australia, the Island Colony of Tasmania, and the
British portion of the island of New Guinea.

Each state retains its own Supreme Court, with its right
of appeal to the Sovereign in Council, but a new Federal
High Court of Australia exercises jurisdiction throughout
the Commonwealth.

At the passing of the Commonwealth Act the appeal as Appeals from

of right from the Supreme Courts of the seven colonies ^uprfmf ,,

Court of the
existed by virtue of Orders m Council made in pursuance Australian

of Acts of the Imperial Parliament, which fix the limits colonies,
subject to which the right can be exercised. These provisions
were left in force by the Act. Any enactment repugnant
to such provisions passed by a colonial legislature is void
by sect. 2 of the Colonial Laws Validity Act, 1865.

The Federal High Court has original as well as appellate
jurisdiction. Its judgments as a court of appeal are final
and conclusive. But while the Sovereign's prerogative right
is reserved in the case of Canada in all cases, sect. 74 of the
Commonwealth Act forbids an appeal " upon any question
however arising as to the limits inter se of the constitutional
powers of the Commonwealth, and those of any state or states,
or as to the limits inter se of the constitutional powers of any
two or more states, unless the High Court shall certify that
the question is one which ought to be determined " by the
Sovereign in Council." In all other questions the discretion
of allowing an appeal will rest with the Sovereign in Council.

The Commonwealth Parliament may, however, propose Power to
laws limiting further the matters in which leave to appeal limit Pre'
may be asked, but proposed laws containing any such
limitations of the royal prerogative would be reserved by
the Governor-General for His Majesty's pleasure.

The sections of the Commonwealth Act which refer to the High Court.
powers and constitution of the High Court are as follows : —

p.c. 5

66 THE PRACTICE OF THE PRIVY COUNCIL.

71. The judicial power of the Commonwealth shall be
vested in a federal Supreme Court, to be called the High
Court of Australia, and in such other federal courts as the
Parliament creates, and in such other courts as it invests
with federal jurisdiction. The High Court shall consist of a
chief justice, and so many other justices, not less than two,
as the Parliament prescribes.
Appellate 73. The High Court shall have jurisdiction, with such

jurisdiction of exceptions an(j subject to such regulations as the Parliament
High Court. -i , •

prescribes, to hear and determine appeals from all

judgments, decrees, orders, and sentences :

(i.) Of any justice or justices exercising the original

jurisdiction of the High Court ;

(ii.) Of any other federal court, or court exercising
federal jurisdiction, or of the Supreme Court of any
state, or of any other court of any state from which
at the establishment of the Commonwealth an
appeal lies to the Queen in Council;
(iii.) Of the Inter-State Commission, but as to questions of

law only ;

and the judgment of the High Court in all such cases shall
be final and conclusive.

But no exception or regulation prescribed by the Parlia-
ment shall prevent the High Court from hearing and
determining any appeal from the Supreme Court of a
state in any matter in which at the establishment of the
Commonwealth an appeal lies from such Supreme Court to
the Queen in Council.

Until the Parliament otherwise provides, the conditions of
and restrictions on appeals to the Queen in Council from the
Supreme Courts of the several states shall be applicable to
appeals from them to the High Court.

Appeal to 74. No appeal shall be permitted to the Queen in

Council from a decision of the High Court upon any
question, howsoever arising, as to the limits inter se of
the constitutional powers of the Commonwealth and
those of any state or states, or as to the limits inter
se of the constitutional powers of any two or more
states, unless the High Court shall certify that the

RULES OF APPEAL FOR THE COLONIES, ETC. 67

question is one which ought to be determined by
Her Majesty in Council.

The High Court may so certify if satisfied that for
any special reason the certificate should be granted,
and thereupon an appeal shall lie to Her Majesty in
Council on the question without further leave.

Except as provided in this section, this Constitution
shall not impair any right which the Queen may be
pleased to exercise by virtue of her royal prerogative
to grant special leave of appeal from the High Court
to Her Majesty in Council. The Parliament may
make laws limiting the matters in which such leave
may be asked, but proposed laws containing any such
limitation shall be reserved by the Governor-General
for Her Majesty's pleasure.

75. In all matters : Original
(i.) Arising under any treaty ;

(ii.) Affecting consuls or other representatives of other

countries j
(Hi.) In which the Commonwealth, or a person suing or

being sued on behalf of the Commonwealth, is a

party ;
(iv.) Between states, or between residents of different

states, or between a state and a resident of another

state ;
(v.) In which a writ of mandamus or prohibition or an

injunction is sought against an officer of the

Commonwealth ;
the High Court shall have original jurisdiction.

76. The Parliament may make laws conferring original Additional

jurisdiction on the High Court in any matter : ?£§diction
(i.) Arising under this constitution, or involving its

interpretation ;

(ii.) Arising under any laws made by the Parliament ;
(iii.) Of Admiralty and maritime jurisdiction ;
(iv.) Relating to the same subject-matter claimed under

the' laws of different states :

77. With respect to any of the matters mentioned in the Power to

last two sections the Parliament may make laws : Define iuris'

diction.
5—2

68 THE PRACTICE OF THE PRIVY COUNCIL.

(i.) Defining the jurisdiction of any federal court other

than the High Court ;

(ii.) Defining the extent to which the jurisdiction of any
federal court shall be exclusive of that which
belongs to or is invested in the courts of the
States ;

(iii.) Investiog any court of a state with federal juris-
diction.

Conflict of It was pointed out at the time the Commonwealth Act

jurisdiction was passe(j that it opened the way to a conflict of decisions,
because there was an alternative right of appeal to the High
Court and to the Privy Council from the Supreme Courts of
the states, and no final right of appeal to the Privy Council
from the judgment of the High Court. The result was
that two conflicting decrees might be given by two distinct
courts of final appellate jurisdiction. The awkward possi-
bility which was foreseen came to pass.

The Common- In 1903 the Parliament of the Commonwealth passed an

Judiciary Act, ^cfc to make Provisi°n fc>r tne exercise of the judicial power

1903. of the Commonwealth. By this Act a High Court was duly

constituted, and provision was made for the exercise of the

jurisdiction conferred on the court by the Constitution

Act.

The jurisdiction of the High Court was made exclusive
by sect. 38 in (i.) matters arising directly under any treaty ;
(ii.) suits between states ; (iii.) suits by the Commonwealth
against a state or by a state against the Commonwealth ;
and in (iv.) matters in which a writ of mandamus or pro-
hibition was sought against an officer of the Commonwealth
or a federal court.

By sect. 39 (2)the several courts of the states were invested
with federal jurisdiction in all matters in which the High
Court had original jurisdiction, or in which original juris-
diction could be conferred upon it, except as provided in
sect. 38, and subject to conditions, of which the most important
was that every decision of the Supreme Court of a state, or
any court of a state from which at the establishment of
the Commonwealth an appeal lay to the Queen in Council,
should be final and conclusive except in so far as an appeal
might be brought to the High Court.

This condition was apparently intended to abolish the

RULES OF APPEAL FOR THE COLONIES, ETC.

right of any appeal, as of right, from the Supreme Court
of a state in the exercise of federal jurisdiction, but the
prerogative right to grant leave to appeal from a decision
of the Supreme Court direct to the Privy Council was not
expressly taken away.

In the case of the Colonial Sugar Refining Co. v. Irving,
(1905) A. C. 369, the Judicial Committee, without deciding
whether the Act took away the right of appeal from the
Supreme Court of Queensland to His Majesty in Council,
held that the Act anyhow was not retrospective and could
not affect a right of appeal in a suit pending when the
Act was passed and decided by the Supreme Court after-
wards.

Trouble, however, soon arose over constitutional cases
which were started after the Act was passed. In 1904 an
appeal was brought to the High Court in the case of Deakm
v. Well (I. C. L. R. 585) from a decision of the Supreme
Court of Victoria, holding that the salary of a federal officer
was liable to state income-tax. The High Court reversed the
judgment, and declined to grant a certificate under sect. 74 of
the Commonwealth Act, that the case was one which ought
to be determined by His Majesty in Council. The decision
of the High Court was not popular with the governments of
the Australian states, and in 1906 an appeal was brought
directly from the Supreme Court of Victoria before the
Privy Council in the case of Webb v. Outtrim, (1907) A. C.
81, which raised precisely the same point. In that case
the Supreme Court of Victoria, in deference to the decision
of the High Court of Australia in DeaJcin v. Webb, had
decided that a Commonwealth officer resident in Victoria,
where he earned and received his salary as such officer, was
not liable to assessment under the income-tax of Victoria.
The appellant was granted leave to appeal by the Supreme
Court of Victoria, notwithstanding the provisions of sects. 38
and 39 of the Judiciary Act of 1903. The Judicial Com-
mittee reversed the judgment of the Supreme Court, dis-
agreeing from the judgment of the High Court in the case
of Deakin v. Webb.

The Commonwealth presented a petition to the Judicial
Committee praying for a dismissal of the appeal on the
ground of its incompetence ; but the Judicial Committee,

70 THE PRACTICE OF THE PRIVY COUNCIL.

upholding the view taken when the same objection was raised
in the Supreme Court of Victoria, held that there was no pro-
vision in the Commonwealth Act taking away the right of the
Supreme Court of Yictoria to grant leave to appeal to the Privy
Council, and they endorsed the view of Mr. Justice Hodges,
who said : " If the federal legislature had passed an Act which
said that hereafter there shall be no right of appeal to the King
in Council from a decision of the Supreme Court of Victoria
in any of the following matters, and had then set out a
number of matters, including that now under consideration,
I should have felt no doubt that such an Act was outside
the power of the federal legislature, and, in my opinion, it
is outside their power to do that very thing in a roundabout
way."

Further The Commonwealth Government, however, did not

conflict. acquiesce in the decision of the Privy Council, and subse-

quently the High Court reversed the judgment of a New
South Wales court, which, following that decision, held that
a federal officer was liable to pay income-tax. Baxter v. Com-
missioners of Taxation, 4 C. L. E. 1087. The judges of
the High Court declared that they were the ultimate arbiters
upon all questions as to the limits inter se of the constitu-
tional powers of the Commonwealth and a state, and therefore
that they were not bound to follow the decision in Webb v.
Outtrim, but could follow their own decision in Deakin v.
Well. Further, they expressed disagreement with the
view of the Privy Council, that despite sect. 39 (2) (a) of the
Judiciary Act, 1903, an appeal still lay of right to the Privy
Council from a decision of the Supreme Court of Victoria
on a matter of federal jurisdiction. They argued that the
action of the Parliament in ascribing to the Supreme Court
federal jurisdiction, while at the same time declaring that
no appeal (excluding an appeal by special leave to the
Privy Council) should lie to any body save the High Court,
was really the creation of a new court with a definite juris-
diction, subject only to such appeal as was provided for in
the Act by which it came into being ; whereas the Privy
Council had held that the right to appeal to the Judicial
Committee, without special leave, in certain cases was a
necessary incident of all decisions of the Supreme Courfc
whatever the jurisdiction it was exercising.

RULES OF APPEAL FOR THE COLONIES, ETC,

Following this decision of the High Court an application
for a certificate to carry the matter again to the Privy
Council was refused (Flint v. Well, 4 C. L. R. 1178), and
the Chief Justice held that the inconvenience caused by the
existing contradictory pronouncements by the Privy Council
and the High Court could be removed by the Parliament of
the Commonwealth exercising its powers under sect. 77 of
the Constitution.

Following upon this suggestion of the High Court, an Subsequent
Act was introduced and passed in the Session of 1907 to legialation-
amend the Judiciary Act of 1908. The second clause of
the Act provided that " in any matters (other than trials of
indictable offences) involving any question however arising
as to the limits inter se of the constitutional powers of the
Commonwealth, and those of any state or states or as to the
limits inter se of the constitutional power of any two or
more states, the jurisdiction of the High Court shall be
exclusive of the jurisdiction of the Supreme Courts of the
states, so far as that he S upreme Court of a state shall not
have jurisdiction to entertain or determine any such matter,
either as a court of first instance or as a Court of Appeal
from an inferior court." The fifth section provided that
"when in any cause pending in the Supreme Court of a
state there arises any question as to the limits inter se of
the constitutional powers of the Commonwealth and those
of any state or states or as to the limits inter se of the
constitutional powers of any two or more states, it shall be
the duty of the court to proceed no further in the cause, and
the cause shall be by virtue of this Act, and without any
order of the High Court, removed to the High Court."

It was impossible, in view of the decision of the Privy
Council in Webb v. Outtrim, for a Commonwealth Act to
provide that an appeal by special leave, or an appeal without
special leave, should not lie from any decision of a Supreme
Court, since by the judgment of the Privy Council that
provision would be an interference with the constitution
of the state and therefore repugnant to the Constitution
Act, and also to the Acts (9 Geo. IV. c. 83, s. 15, and 7 & 8
Viet. c. 69) which define the jurisdiction of the Privy
Council. But by the new law the Supreme Court never
pronounces a decision on any question in which the rights

72 THE PRACTICE OF THE PEIVY COUNCIL.

of the Commonwealth and of the states inter se are at issue ;
for such a case must now come before the High Court, which
can make itself, by refusing a certificate, the final arbiter.
Present The Commonwealth Government has, however, remained

position. firm jn the vjew iai<j flown by the High Court that the Privy

Council cannot grant special leave to appeal from a decision
of the Supreme Court of the states in the exercise of their
federal jurisdiction. It protested, though tardily, against
the new rules of appeal, issued for the state courts in 1909
and 1910, applying to the courts in the exercise of federal
jurisdiction, but the Colonial Office pointed out that the
view was opposed to the principle laid down by the Privy
Council in Well) v. Outtrim, and took no notice of the
alleged distinction in jurisdiction in framing the rules for
states of the Commonwealth which were issued after the
protest.

It is still, indeed, open in theory to the Judicial Committee
to grant special leave to appeal from the decision of any
court in a state exercising federal jurisdiction inferior to
the Supreme Court. But in practice the Committee do not
admit appeals from colonial courts of first instance, and the
risk of its being done was deliberately passed over in the
Federal Act. At the same time, it is still open to the
Privy Council to grant special leave to appeal from the
High Court as to whether the question involved does or
does not raise an issue as to the rights inter se of the
Commonwealth and the states.

The Privy Council accepted the federal solution of the
deadlock, and refused to reopen the controversy by rejecting
a petition for special leave to appeal from the judgments of
the High Court in the cases of Baxter v. The Commissioners
of Taxation and Flint v. Webl, on the ground that, before
the petition could be heard, an Act of the Commonwealth
was passed expressly authorising the states to impose
taxation on federal officers ((1908) A. C. 214).

Subsequently the Judicial Committee refused special leave
to appeal from a judgment of the High Court holding
that goods imported by the state government are liable to
duties of customs under the laws of the Commonwealth.
Att.-Gen. for New South Wales v. Collector of Customs for
New South Wales, (1909) A. C. 345. Lord Atkinson in

RULES OF APPEAL FOR THE COLONIES, ETC. 73

delivering the judgment of the court said that leave was
refused solely on the ground that the case came within sect. 74
of the Commonwealth Act, and no certificate had been
granted by the High Court that the question was one which
ought to be determined by the Sovereign in Council.

As to cases which do not involve constitutional questions, Appeals in
the Judicial Committee applies the same principles in dealing other cases*
with special petitions for leave to appeal from the High
Court of Australia as with petitions for leave to appeal
from the Supreme Court of Canada. When the petitioner
has elected to appeal in the first place to the High Court
and has failed there, the Committee will not, except in a
very special case, entertain his petition. Victoria Eailway
Commissioners v. Brown, (1906) A. C., p. 384. And
when the petitioner has been taken as respondent to
the High Court, his petition will only be entertained
where the case is of gravity and involving matter of public
interest, or some important question of law, or affecting
property of considerable amount, or where the case is
otherwise of some public importance, or of a very substan-
tial character ; and even in such a suit the judgment from
which leave to appeal is sought may appear to be plainly
right or at least to be unattended with sufficient doubt to
justify their lordships in advising His Majesty to grant
special leave to appeal. Daily Telegraph Newspaper Go. v.
NcLaughlin, (1908) A. C., p. 778.

Special leave to appeal was refused in a case where it
appeared that the law was rightly laid down by the High
Court, and the question between the parties was about the
application of the law to the particular case, involving
simply the construction of a document. It was not sufficient
that the case was of a very substantial character. Wilfley
Ore Concentrator Syndicate, Ltd. v. E. V. Guthridge, Ltd.,
(1906) A. C. 548.

As appeals from the High Court can only be obtained by
special leave from the Judicial Committee, there are no ,
special rules to regulate them. The Judicial Committee in
every case determines the amount of security, etc., in
granting leave ; but an Order in Council of November 28,
1910, prescribes rules in common form for preparing the
record of such appeals and enforcing the judgment.

74 THE PRACTICE OF THE PRIVY COUNCIL.

THE STATES OF THE COMMON-
WEALTH.

The right of appeal from the courts of the different
states of the Commonwealth of Australia to the Privy
Council remains in the form in which it existed before the
foundation of the Commonwealth, save in so far as it is
modified by the provisions (considered above) of the
Commonwealth Constitution Act and the Commonwealth
legislation which has since supervened. The Constitution
Act gives an alternative right of appeal in all cases to the
High Court of Australia, but save in constitutional and
inter-state questions does not curtail the right of appeal
to the Privy Council, and Orders in Council have recently
been issued to render uniform the conditions of appeal from
each of the states to the Privy Council. Their effect is
given below.

BRITISH NEW GUINEA, OR PAPUA.

This colony was declared to be a British Settlement by
Letters Patent issued by virtue of the British Settlement
Act, 1887 ; and by an Order in Council of 1888 courts of
justice were established and the appeal was provided from
the Supreme Court Act thereunder to Queensland and thence
to the King in Council as in the ordinary jurisdiction of the
Queensland Supreme Court.

Appeal to By Letters Patent of March, 1902, which were brought

into force by a colonial proclamation September 1, 1906,
British New Guinea was admitted to the Commonwealth as
the territory of Papua, and its government is regulated by
the Commonwealth Papua Act of 1905. By that Act an
appeal lies from the Central Court to the High Court of
Australia, whose judgment shall be final and con-
clusive (s. 43). And an Order in Council of March, 1906,
revokes the older Orders in Council dealing with appeals
from the colonies. An appeal to His Majesty in Council
can now therefore only be brought by special leave or by
certificate from the High Court of Australia.

RULES OF APPEAL FOR THE COLONIES, ETC. 75

NEW SOUTH WALES.

The colony of New South "Wales was settled towards the end
of the eighteenth century. In 1850 an Imperial Statute (13 Constitution.
&. 14 Yict. c. 59) was passed authorising a Constitution for the
government of this colony. This statute also enabled the
Governor in Council of the colonies of New South Wales and
Victoria to make provision for the administration of justice
and for defining the constitution of courts of law and equity.

The Supreme Court of New South Wales was established Supreme
by Letters Patent, dated October 13, 1823, in pursuance Court-
of the 4 Geo. IV. c. 9G, which authorized it. Provision for p
bringing appeals from the decisions of the Supreme Court October 13,
to the Privy Council was made by 9 Geo. IV. c. 83, which 1823-
was applied by an Order in Council of 1836. 4 Geo- IV-

By a recent Order in Council (April 2, 1909) that order Rules for
is revoked, and new rules regulating appeals from the aPPeal-
Supreme Court are made. An appeal lies of right where
the value of the subject-matter is of 500/. or over.
Application to the court for leave to appeal must be made
by motion or petition within fourteen days from the date
of the judgment appealed from. The Order adopts the
Colonial Appeal Rules.

The Colonial Courts of Admiralty Act, 1890, is brought Admiralty
into force for New South Wales by an Order in Council Court-
of May 4, 1911.

The Crown's prerogative remains to grant special leave Criminal
to appeal in a criminal case, and it will be exercised in a appeals,
proper case. Reg. v. Bertrand, L. R. 1 P. C. 529.

NEW ZEALAND^).

The Sovereignty of New Zealand was ceded, by the
treaty of Waitangi on February 5, 1840, to the British
Crown, and New Zealand became a dependency of New
South Wales and subject to its laws, but was separated in
pursuance of powers contained in 3 & 4 Viet. c. 62 (Imp.).

The Supreme Court of New Zealand was established in Supreme
; by the local legislature (Ord. 7 Viet. Sess. III. No. 1), Court-

(a) New Zealand forms a separate dominion, and is not a part of
the Australian Commonwealth ; it is dealt with here for the sake of
convenience.

76 THE PRACTICE OF THE PRIVY COUNCIL.

and the Court of Appeal was constituted by an Act (No. 30)

of 1882.

Native Appel- There is an appeal from the " Native Land Court," under
late Court. Act jj0> 43 of 1894 (N> Zi^ to fche Dative Appellate Court.

The latter court may state a case for the opinion of the
Supreme Court upon any point of law that may arise. The
opinion of the Supreme Court is binding on the Appellate
Court. The decision of the Native Appellate Court is as to
every point of law and fact " final and conclusive " (s. 93).
Any appeal therefrom must therefore be by special leave (b).
Right of There is still a double right of appeal from the courts

appeal. of -^-^ Zealand to the Privy Council, either from the

Appeal Court or the Supreme Court of the colony. The
appeal from the latter was regulated till recently by an
Order in Council of 1860, and from the Court of Appeal
by an Order in Council of 1871, but by the Order in Council
of 1910 new provision is made for appeals from the colony.
It is provided by these regulations that an appeal lies as
of right :

(a) From any final judgment of the Court of Appeal
when the matter in dispute is of the value of 500Z.

(b) At the discretion of the Court of Appeal from any
other judgment of that court, whether final or interlocutory,
if, in the opinion of that court, the question involved in the
appeal is one which by reason of its great general or public
importance, or otherwise, ought to be submitted to His
Majesty in Council for decision.

(6) Right of Appeal. — The right of obtaining special leave to appeal
from the decision of the Native Appellate Court was recently expressly
affirmed, though in the particular case, which was in the region of
probate, such leave was refused on the merits. See In re the Will of
Wi Matua, (1908) A. C. 448. The Committee declared that the pre-
rogative was not taken away, because the Native Appellate Court had
not a special jurisdiction in the sense that the statute conferred on it
functions " which would not otherwise have belonged to it in the
general distribution of justice." It was otherwise with the juris-
diction of the Canadian Court dealing with part of the privilege of
Parliament from which leave to appeal was refused. Theberge v.
Laudry (u. s.}. But here the legal rights of a part of the Queen's
subjects in the matter of land succession and probate were subjected
to the newly-created tribunal. " But for the creation of this court
the Land Courts would have had to determine those rights as best they
could, and an appeal would clearly have lain to His Majesty. The
exclusion of the right to appeal to His Majesty would therefore be a
forfeiture of existing rights on the part of Sovereign and subject."

RULES OF APPEAL FOR THE COLONIES, ETC.

judgment of that court if in the opinion of that court the
question involved in the appeal is one which by reason of
its great general or public importance, or of the magnitude
of the interests affected, or for any other reason ought to be
submitted to His Majesty in Council for decision.

Applications to the court for leave to appeal must be
made by motion in court at the time when judgment is
given, or by notice of motion filed in the court and served on
the opposite party in accordance with the practice of the
court, within twenty-one days after the date of the judg-
ment appealed from. (Rule 4.)

There is therefore no appeal as of full right from a Right of
judgment of the Supreme Court (c). An appeal can only s^e
be brought to the Privy Council from that court directly Court,
when the court itself grants leave to appeal.

QUEENSLAND.

Queensland, until 1859, formed a portion of the colony of
New South Wales, when it became a separate colony and
was granted a constitution by Royal Letters Patent, dated
June 6, 18f>9 (tf). Under an Act of the New South

(c) The Supreme Court has refused leave to appeal direct to the
Sovereign, notwithstanding the amount involved was large, until an
appeal had first been had to the Court of Appeal, and notwithstanding
the practice had been to the contrary. In re New Zealand Midland
Railway Co., Ex parte Coates (1899), 17 N. Z. L. R. 622. Cf. Franck v.
Stead (1881), 1 N. Z. L. R. (S. C.) 112 ; Develin v. Waihi-Silverton
Gold Mining Co. (1897), 16 N. Z. L. R. 192.

It is probable that the Supreme Court would follow the same
practice under the new rules, and would refuse leave to appeal direct
to the King in Council, except in cases where a very important point
of law arose.

Under the old rules, where an appeal lay from the Court of Appeal
as of right if a civil right of the amount or value of 5001. was in dispute,
leave to appeal was refused where plaintiffs claimed an injunction for
infringement of their trade mark, and the defendant had sold the
goods complained of for two and a half years with average annual
profits of 1501. Sanitas Co. v. Ogle (1896), N. Z. L. R. 603. But
under the new rules the Court of Appeal has power to grant leave in
any case where it thinks fit.

Bankruptcy. — On an appeal from the Court of Bankruptcy the
decision of the Court of Appeal is final. The appeal must, therefore,
be by special leave of the Sovereign in Council. In re Ell, Ex parte
Austin (1886), 4 N. Z. L. 11. 126.

(d) By the Constitution Act of Queensland, 1867, 31 Viet. No. 38,
s. 24, any question respecting any vacancy in the Legislative Council
may be referred by the Governor to the Council to be heard and deter-
mined, and there is an appeal therefrom to the Privy Council. Cf.
Att.-Gen. v. Gibbon (1887), 12 A. C. 442. So also any question arising

Supreme
Court.

Constitu-
tional
questions.

THE PRACTICE OF THE PRIVY COUNCIL.

.Rules of
appeal.

Wales Legislature in 1857, a court with Supreme Court
jurisdiction was created for the district of Moreton Bay. On
May 13, 1859, this district was, by Letters Patent, con-
stituted the colony of Queensland ; and by Order in Council
of June 6 of the same year, the above court was
continued as the Supreme Court of Queensland ; by an
Order in Council of June 30, 1861, provision was made
for appeals from the Supreme Court to the Privy Council.
By an Order of October 10, 1909, this Order has been
revoked, and a new regulation made for appeals. By this
regulation an appeal lies of right when the subject-matter is
of the value of 500/. and upwards, and in other cases at the
discretion of the court. Application for leave to appeal
must be made to the court within twenty-one days from the
date of the judgment appealed from. The Colonial Appeal
Rules are adopted.

SOUTH AUSTRALIA.

Settlement of
colony.

Supreme
Court.

The Court
of Appeals.

This colony was settled and created a Province of the
Empire under the Imperial Statute 4 & 5 Will. IV. c. 95.
Responsible government was granted in 1856 by virtue of
the 13 & 14 Viet. c. 59 (Imp.).

The local legislature, by an Act (7 Will. IV. No. 5)
established the Supreme Court of the Province of South
Australia, and also a Court of Appeals of the province, and
permitted an appeal to Her Majesty in Council from both the
Supreme Court and Court of Appeals.
Equity Court. Under the Equity Act (South Australia), 1866-7, s. 9,
the Primary Judge has the jurisdiction of the Supreme
Court, but a judge sitting alone as the primary judge
exercising equitable jurisdiction in the Supreme Court is
not apparently sitting as the Supreme Court so as to enable
an appeal to be had direct to the Privy Council without

out of a divergence between the Legislative Council and the Legis-
lative Assembly. See Queensland Money Sills Case, heard on special
reference, April 3, 1886.
Divorce ^ *he Matrimonial Causes Act, 28 Viet. No. 29, s. 51, either party

dissatisfied with the decision of the full court on any petition for the
appeals. ,. i ,. £ . , ,,. „ J f . . . .

dissolution of a marriage or for nullity of marriage, may, within six

months after the pronouncing thereof, appeal to Her Majesty in Privy
Council, subject to such terms and conditions as to alimony, custody
and maintenance of children, disposal of propert}7, and costs of suit,
as the court may direct pending such appeal.

RULES OF APPEAL FOR THE COLONIES, ETC. 79

appealing first to the full court. Angas v. Cowen, 17
S. A. L. R. 110 (1883); but see Giles v. Wooldridge, 13
S. A. L. K. 185 (1879).

The Order in Council dated February 18, 1009, revoking Rules of
a former order of June 9, 1860, regulates the conditions of aPPeal-
appeal from the Supreme Court to His Majesty in Council. The
conditions of appeal are the same as for the other Supreme
Courts of the Australian states ; but it is provided that
" court " means either the full court or a single judge of
the Supreme Court, according as the matter is one which
under the rules of this court properly appertains to the full
court or a single judge. The Colonial Appeal Rules are
adopted.

The appealable amount is 500?. ; the application for leave Court of
to appeal must be made within twenty-one days. Appea .

A local Act (24 & 25 Viet. c. 5) constituted the creation
of a Court of Appeal for South Australia, consisting of the
Governor in Council ; but the court has sunk into disuse,
and is not likely to be revived.

TASMANIA.
(Van Diemen's Land.)

A Legislative Council was established by Royal Warrant, Colony.
July 17, 1825, in Tasmania, then called Van Diemen's Land,
and the present constitution of the colony was determined
by the local Acts, 18 Viet. No. 17, and«49 Viet. No. 8. The
name of the colony was changed by Order in Council, 1856.

The 4 Geo. IV. c. 96 authorised the establishment of Supreme
Supreme Courts in New South Wales and Van Diemen's Court-
Land. In 1831, by Royal Charter, the "Supreme Court of
Van Diemen's Land," with full equitable and common law
and ecclesiastical jurisdiction, was created. A statutable
appeal to the Privy Council from the Supreme Court was
given by sect. 15, and rules for the conduct of appeals was
laid down. By an Order in Council of November 7,
1910, new regulations were made, and the provision as to
appeals in the charter of justice were revoked. An appeal Rules of
lies as by right from any final judgment when the matter in aPPeal-
dispute or the appeal amounts to or is of the value of 1,OOOZ.
or upwards, or when the appeal involves directly or indirectly

THE PRACTICE OF THE PRIVY COUNCIL.

Supreme

Court

established.

Appeals

some claim or question to or respecting property or some
civil right amounting to or of the value of 500?. and
upwards. At the discretion of the court from any other
judgment when it thinks fit.

Application for leave to appeal must be made within
twenty-one days from the date of the judgment (e).

Where a local Act provided that in land disputes the
Supreme Court decision should be final and in accordance
with the best evidence procurable, even if not required or
admissible in ordinary cases, and that the court was not
to be bound by strict rules of law or equity or by any legal
forms, it was held that there was no prerogative right
reserved to grant special leave to appeal, Moses v. Parker,
(189G) A. C. 245.

The decision of the Supreme Court in such circumstances
could not be regarded as a judicial decision admitting of
appeal. Of. In re the Will of Wi Matua, (1908) A. C. 448,
p. 76 (n.), supra.

VICTORIA.

By an Imperial Statute (13 & 14 Viet. c. 59) Victoria
was created a separate colony, and the Supreme Court of the
colony of Victoria was authorised to be created by Letters
Patent, and the provisions of the 9 Geo. IV. c. 83 regarding
appeals to His Majesty in Council were applied to such
court when established.

No Letters Patent being received in the colony in pursuance
of this provision, the local legislature of Victoria in 1852
established the Supreme Court (16 Viet. Ords. Nos. 10, 12,
re-enacted 54 Viet. No. 1142).

By an Order in Council of June 9, 1860, provision was
made for appeals from the Supreme Court of the colony to
the Privy Council ; but this order has been revoked, and
a new Order in Council of January 23, 1911, makes fresh
regulations for appeals. The appealable amount is fixed at
500?., and the limit of time for appealing is twenty-one
days, while the other provisions are in common form.

In the new as in the old Order in Council, the appeal-
able value is fixed at 500?. The local legislature in 1890

(e) The Order adopts the Colonial Appeal Rules.

RULES OF APPEAL FOR THE COLONIES, ETC. 81

passed an Act, 54 Viet. No. 1,142, wherein, while recapitu-
lating to some extent the words of the Order in Council, the
appealable value is stated to be 1,000/., and the limit of
time for appealing is fixed at thirty days ; and the court
has power to enlarge the time for giving security beyond
three months. But application must be made before the
expiry of the three months. Pearson v. Russell, 15 V. L. R.
89. This Ordinance was a re-enactment of the Victorian
statute, 15 Viet. No. 10, s. 33. The appeals under the Two appeal-
Order in Council and the Victorian statute are both avail- able limifcs-
able. The Supreme Court applies, in preference, the rules
of the Order in Council. Pearson v. Russell. This would
seem in accordance with good law, since no local Ordinance
has ever been held to override an Order in Council.

The local statute, it has been declared, is to be read cumula-
tively with the Order in Council. Exparte Rolfe, 2 W. & W.
52. ' The appeal by the statute is from a decision, but
this does not differ from a final judgment from which the
appeal lies in the Order in Council. In re Cromie, 20 V.
L. R. 132. A number of decisions dealing with the cases
in which an appeal will be held to lie as of right and with
the fulfilment of the conditions of appeal will be found in
the chapter on Appeals by Right of Grant, pp. 202—204.

WESTERN AUSTRALIA.

This colony was settled and proclaimed a British colony A settled
in 1829. By virtue of 10 Geo. IV. (Imp.), provision was colony-
made for its government and for the constitution of courts,
and by an Ordinance, 24 Viet. No. 15, the Supreme Court of
Western Australia was established 1861. By sect. 29 of Appeal given
that Ordinance it is enacted, " That it shall be lawful for b7 Ordinance
the plaintiff or plaintiffs, defendant or defendants, against caseTtTcourt
whom any final judgment, decree, or order of the said of Appeal if
Supreme Court shall be given or pronounced, which final JJes
judgment, decree, or order shall directly or indirectly involve Council,
any claim, demand or question respecting property, or any
civil right amounting to or of the value of 500/. and up-
wards, if no appeal therefrom shall lie to Her Majesty's
Privy Council, to appeal therefrom to the Court of Appeal
established by the Ordinance, sect. 30.

p.c. 6

82 THE PRACTICE OF THE PRIVY COUNCIL.

In 1886, however, the full court was constituted the

Court of Appeal ; and the appeal to the Privy Council now

lies from the decision of the full court, as well as from a

Appeals. single judge of the Supreme Court. Regulations for appeal

to the Privy Council were made by Order in Council, 1861.

By an Order in Council of June 28, 1909, this order
was revoked, and fresh regulations were made in the
common form. The appealable amount is 5001. or upwards,
and the limit of time for the application to appeal is
twenty-one days. The Colonial Appeal Rules are adopted.

FIJI ISLANDS.

The Fiji Islands which were ceded to Great Britain in
1874 were created a separate colony in 1875 under Letters
Patent by the grant of a charter of government.

Courts. A court called the Central Court of Fiji was established

in 1875, and by an Ordinance of the same year it was
constituted as the Supreme Court.

Appeals. By an Order in Council of February 22, 1878, a provision

was made to enable parties to appeal from the decisions of the
Supreme Court of Fiji to the Privy Council, and by an Order
in Council of May 31, 1910, this order was revoked and fresh
regulations were made.

An appeal lies of right from a final judgment of the
Supreme Court when the matter in dispute is of the value
of 500Z. or upwards ; application for leave to appeal must be
made within twenty-one days, and the other regulations
follow the common form.

III. THE UNION OF SOUTH AFRICA.

The third great confederation of British colonies is the
Union of South Africa, created by the South Africa Act,
1909 (9 Edw. VII., c. 9), which was carried out by a royal
proclamation in the following year.

By the Act, s. 4, the colonies of the Cape of Good Hope,
Natal, the Transvaal, and the Orange River Colony are
united in a Legislative Union under one Government.
Provisions are made in sects. 150 and 151 whereby the

RULES OF APPEAL FOR THE COLONIES, ETC. 8J

Kins: with the advice of the Privy Council on addresses from
the Houses of Parliament of the Union may admit into the
Union the territories administered by the British South Africa
Company, and may transfer to the Union the government
of any other territories belonging* to or under the protection
of His Majesty and inhabited wholly or in part by natives.

The South Africa Constitution restricts the right of appeal Right of
to the King in Council far more narrowly than the constitu- aPPea1'
tions of the other two Imperial confederations.

The Dominion of Canada Constitution left unimpaired
the power of appeal either as of right or by special leave
from every provincial court, and the Commonwealth
Constitution left almost unimpaired the power of appeal
by right or by special leave from the Supreme Courts and
the inferior courts of the states.

The South Africa Act, however, not only abolishes the
appeal as of right wherever it existed, but also purports to
take away the right of the Privy Council to grant special
leave to appeal from any court whatever in South Africa
save the Appellate Division of the Supreme Court. Before
the Act came into force, appeals could be brought direct to
the Privy Council as of right or by special leave from three
courts in the Cape of Good Hope — the Supreme Court, the
Court of the Eastern Districts, and the High Court of
Griqualand ; from the Supreme Courts of the Transvaal, the
Orange River Colony and Natal ; and lastly from the
"Witwatersrand Court of the Transvaal, the High Court of
Natal, and the High Court of Rhodesia.

The appeal from these courts was subject to certain con-
ditions as to the appealable amount, and in the case of
each court an Order in Council or some other enactment
prescribed the rules governing the appeal.

The South Africa Act purports to take away this right of Judicature
appeal from the courts of the various South African colonies of the Union-
that comprise the Union. All the supreme courts of the
colonies (i.e. the highest tribunals in each colony) are
consolidated into one Supreme Court of South Africa, which
is to consist of two divisions, the Supreme Division and the
Appellate Division. The sections of the Act which deal
with the Supreme Court and the right of appeal therefrom
are as follows : —

6—2

THE PRACTICE OF THE PRIVY COUNCIL.

Constitution
of Supreme
Court.

Appellate
Division of
Supreme
Court.

Filling of
temporary
vacancies in
Appellate
Division.

Constitution
of provincial
and local
divisions of
Supreme
Court.

THE SUPREME COURT OF SOUTH AFRICA.

95. There shall be a Supreme Court of South Africa con-
sisting of a Chief Justice of South Africa, the ordinary
judges of appeal, and the other judges of the several
divisions of the Supreme Court of South Africa in the
provinces.

%. There shall be an Appellate Division of the Supreme
Court of South Africa, consisting of the Chief Justice of
South Africa, two ordinary judges of appeal, and two
additional judges of appeal. Such additional judges of
appeal shall be assigned by the Governor- General in Council
to the Appellate Division from any of the provincial or
local divisions of the Supreme Court of South Africa, but
shall continue to perform their duties as judges of their
respective divisions when their attendance is not required in
the Appellate Division.

97. The Governor-General in Council may, during the
absence, illness, or other incapacity of the Chief Justice of
South Africa, or of any ordinary or additional judge of
appeal, appoint any other judge of the Supreme Court of
South Africa to act temporarily as such chief justice,
ordinary judge of appeal, or additional judge of appeal, as
the case may be.

98. — (1) The several Supreme Courts of the Cape of Good
Hope, Natal, and the Transvaal, and the High Court of the
Orange River Colony shall, on the establishment of the
Union, become provincial divisions of the Supreme Court of
South Africa within their respective provinces, and shall
each be presided over by a judge-president.

(2) The court of the eastern districts of the Cape of Good
Hope, the High Court of Griqualand, the High Court of
Witwatersrand, and the several circuit courts, shall become
local divisions of the Supreme Court of South Africa within
the respective areas of their jurisdiction as existing at the
establishment of the Union.

(3) The said provincial and local divisions, referred to in
this Act as Superior Courts, shall, in addition to any original
jurisdiction exercised by the corresponding courts of the
colonies at the establishment of the Union have jurisdiction
in all matters :

RULES OF APPEAL FOR THE COLONIES, ETC. 86

(a) in which the Government of the Union or a person

suing or being sued on behalf of such Government
is a party ;

(b) in which the validity .of any provincial ordinance shall

come into question.

(4) Unless and until Parliament shall otherwise provide,
the said Superior Courts shall mutatis mutandis have the
same jurisdiction in matters affecting the validity of elections
of members of the House of Assembly and provincial
councils as the corresponding courts of the colonies have at
the establishment of the Union in regard to parliamentary
elections in such colonies respectively.

103. In every civil case in which, according to the law in Appeals to
force at the establishment of the Union, an appeal might

have been made to the Supreme Court of any of the colonies
from a Superior Court in any of the colonies, or from the
High Court of Southern Rhodesia, the appeal shall be made
only to the Appellate Division, except in cases of orders or
judgments given by a single judge, upon applications by
way of motion or petition or on summons for provisional
sentence or judgments as to costs only, which by law are
left to the discretion of the court. The appeal from any
such orders or judgments, as well as any appeal in criminal
cases from any such Superior Court, or the special reference
by any such court of any point of law in a criminal case,
shall be made to the provincial division corresponding to the
court which before the establishment of the Union would
have had jurisdiction in the matter. There shall be no
further appeal against any judgment given on appeal by
such provincial division except to the Appellate Division,
and then only if the Appellate Division shall have given
special leave to appeal.

104. In every case, civil or criminal, in which at the Existing
establishment of the Union an appeal might have been made aPPeals-
from the Supreme Court of any of the colonies or from the

High Court of the Orange River Colony to the King in
Council, the appeal shall be made only to the Appellate
I )ivision. Provided that the right of appeal in any civil
suit shall not be limited by reason only of the value of
the matter in dispute or the amount claimed or awarded in
such suit.

THE PRACTICE OF THE PRIVY COUNCIL.

Appeals from
inferior
courts to
provincial
divisions.

Provisions as
to appeals to
the King in
Council.

53 & 54 Viet,
c. 27.

105. In every case, civil or criminal, in which at the
establishment of the Union an appeal might have been made
from a court of resident magistrate or other inferior court to
a Superior Court in any of the colonies, the appeal shall be
made to the corresponding division of the Supreme Court of
South Africa ; but there shall be no further appeal against
any judgment given on appeal by such division except to the
Appellate Division, and then only if the Appellate Division
shall have given special leave to appeal.

106. There shall be no appeal from the Supreme
Court of South Africa or from any division thereof
to the King in Council, but nothing herein contained
shall be construed to impair any right which the King
in Council may be pleased to exercise to grant special
leave to appeal from the Appellate Division to the
King in Council. Parliament may make laws limiting
the matters in respect of which such special leave may
be asked, but Bills containing any such limitation shall
be reserved by the Governor- General for the signifi-
cation of His Majesty's pleasure: Provided that
nothing in this section shall affect any right of appeal
to His Majesty in Council from any judgment given
by the Appellate Division of the Supreme Court
under or in virtue of the Colonial Courts of Admiralty
Act, 1890.

Rules of pro
cedure in
Appellate
Division.

107. The Chief Justice of South Africa and the ordinary
judges of appeal may, subject to the approval of the
Governor- General in Council, makes rules for the conduct of
the proceedings of the Appellate Division and prescribing
the time and manner of making appeals thereto. Until
such rules shall have been promulgated, the rules in force
in the Supreme Court of the Cape of Good Hope at the
establishment of the Union shall mutatis mutandis apply.
Pending suits. 116. All suits, civil or criminal, pending in any Superior
Court of any of the colonies at the establishment of the
Union shall stand removed to the corresponding division
of the Supreme Court of South Africa, which shall have
jurisdiction to hear and determine the same, and all judg-

RULES OF APPEAL FOR THE COLONIES, ETC. 87

ments and orders of any Superior Court of any of the colonies
iriven or made before the establishment of the Union shall
have the same force and effect as if they had been given or
made by the corresponding division of the Supreme Court of
South Africa. All appeals to the King in Council which
shall be pending at the establishment of the Union shall be
proceeded with as if this Act had not been passed.

The intended effect of these sections is that the right to Effect, of
grant special leave to appeal from any court whatever in provisions.
South Africa is taken away save as regards the Appellate
Division of the Supreme Court, to which appeals from all the
local courts may be brought. It has been pointed out,
indeed, that the case of the inferior courts of South
Africa which are not divisions of the Supreme Court seems
to be overlooked ; theoretically, applications for leave to
appeal to the Judicial Committee from the judgments of
these courts might be made. In practice it is not likely
that they would be, as the Privy Council discourages appeals
from courts of lower jurisdiction, though it has power to
entertain them (7 & 8 Viet. c. 69, s. 1). And it may be
taken that in general an appeal from South Africa will not
be heard unless it has been through the highest court in the
Union, viz., the Appellate Court. On the other hand there
is at present no class of case which is not subject to
appeal from that court, provided the Judicial Committee
thinks fit to hear it. It is within the power of the Union
Parliament to legislate for the limitation of the matters in
respect of which special leave may be asked, but till such
legislation is passed and approved by the Crown, all questions
of constitutional or civil law may be submitted to the con-
sideration of the Privy Council. Until rules are established
by an Order in Council regulating the conditions of appeal
from the Appellate Division of the Supreme Court of South
Africa, it would appear that there is no limitation as to the
value, of the suit in respect of which leave to appeal is
asked. The old rules of the Supreme Court of South Africa
and the other colonies do not apply in the new circumstances,
and there is nothing in the Act restricting the right of
appeal upon the ground of value. The general rules of the
Judicial Committee (see pp. 257 ff.) will apply in the case of
appeals from South Africa until and unless special rules are

THE PRACTICE OP THE PRIVY COUNCIL.

Rules of
appeal.

Extension
of Union.

made for the Union. As regards cases which were pending
in the colonial courts before the Act of Union came into
operation, the right of appeal to the Judicial Committee,
save by special leave, is taken away by sect. 104. An appeal,
semble, will still lie as of right from the Appellate Division
in Admiralty cases to the Privy Council. Cf. Richelieu Navi-
gation Co. v. Owners of S.S. Breton, (1907) A. C. 127.

As appeals may be brought from the Supreme Court of
South Africa only by special leave of the King in Council, there
are no rules as regards the appealable amount or security.
But rules in the common form as to the preparation of the
record and the enforcement of the Order of the Council
have been issued by an Order in Council dated March 4, 1911.

Sections 150 and 151 of the Act, it has been noticed,
provide for (a) the admission into the Union of the
territories administered by the British South Africa Com-
pany ; (b) the transfer to the Union of the government of
any territories other than those administered by the British
South Africa Company, belonging to or under the protec-
tion of His Majesty and inhabited wholly or in part by
natives. The territories which are likely to be affected
within the near future by these provisions are : (a) Khodesia
(see p. 119), and (b) Basutoland, the Bechuanaland Protec-
torate, and Swaziland. And the appeal which at present lies
from the courts of these territories to the King in Council will
by sect. 23 of the schedule to the Act (which regulates the
conditions of the transfer) be thereafter made to the
Appellate Division of the Supreme Court of South Africa.
Until, however, these territories are brought under the
government of the Union there will remain the right of
appeal to His Majesty in Council given by the existing
Order in Council.

Territory
under His
Majesty.

BASUTOLAND.

This territory in South Africa became in 1868 a part of
Her Majesty's Dominions under the direct authority of Her
Majesty exercised through the High Commissioner in South
Africa. It was annexed to the Cape Colony by Her Majesty's
Order in Council of November 3, 1871. In 1883, however,
the territory was disannexed by another Act of the Cape Par-
liament ; and by Order in Council of February 22, 1884,

RULES OF APPEAL FOR THE COLONIES, ETC. 89

a proclamation of the Governor announced the appointment
of a Chief Magistrate or Resident Commissioner of Basuto-
land, and also declared that the territory had again come
under the direct authority of Her Majesty. The laws of
the colony are made by proclamation issued by the Governor.

The proclamation of 1884 provides for the administration Courts.
of justice, and by sect. 11 the Resident Commissioner has full
power to review and correct the proceedings of all courts and
officers within the territory in all cases and proceedings what-
soever. An Order in Council, dated October 13, 1910, was
issued to regulate appeals from the court of the Resident
Commissioner and from any combined court constituted in
accordance with a proclamation of 1880. By it an appeal Appeals.
lies (a) as of right from any final judgment where the subject-
matter is of the value of 500?. or upwards, and from any final
judgment given in an action for the divorce of persons
joined in matrimony ; or for a declaration of nullity of
marriage ; (b) at the discretion of the court from any other
judgment. Applications for leave to appeal are to be made
within forty-two days from the date of the judgment. The
other rules are in common form.

BRITISH BECHUANALAND
PROTECTORATE.

British Bechuanaland now forms a part of Cape Colony
and is therefore subject to the provisions of the Union Act
relating to appeals to the Privy Council. Part, however, of
the territory ceded by the native chiefs has not been
annexed to Cape Colony, but remains a British Protectorate
subject to the foreign jurisdiction of the Sovereign. By an Foreign juris-

Order in Council, May 9, 1891, made under the Foreign ?^Jver
Jurisdiction Act, the Courts of British Bechuanaland are territories.
given the same jurisdiction, civil and criminal, original and
appellate, over territories, the limits of which are therein
described, lying to the north of British Bechuanaland, as
such courts have within British Bechuanaland, and appeals
therefrom are to be prosecuted as from the courts in their
ordinary jurisdiction. A proclamation of 1888 gave an appeal
from the Resident Magistrates to the Chief Magistrate,
and thence to Her Majesty in Council. Subsequently,
however, by an Act of the Cape of Good Hope, No. 41 of

90 THE PRACTICE OF THE PRIVY COUNCIL.

Courts. 1895, suits depending before the Chief Magistrate's Court

were removed to the High Court of Griqualand, and by
sect. 10, the High Court of Griqualand and the Supreme
Court of Cape of Good Hope have concurrent jurisdiction
throughout the colony, and the Chief Magistrate's Court is
abolished.

Present It is not quite clear what the effect of the South African

position. ^cfc |g Up0n appeais coming from the Protectorate to the
Supreme Court of Cape Colony, but it is probable that they,
like other appeals to that court, would now be subject to
appeal to the Supreme Court of South Africa and thence
to the Privy Council by special leave. But in the case
of R. v. Sekgome, (1910) 2 K. B. 576, where the question
was as to the right of a native chieftain who was imprisoned
by virtue of a proclamation of the High Commissioner to
obtain a liabeas corpus to test the legality of his detention,
it was stated, per Vaughan Williams, L. J. (at p. 609) that he
was of opinion that if Sekgome applied for and was refused a
writ in the court of the Protectorate, an appeal would lie
to the Privy Council. This right may be supported by the
power of the Privy Council to grant special leave to appeal
from the decision of any British court of first instance ;
which right is not affected by the South Africa Act.

SWAZILAND.

Swaziland had been under the protection and administra-
tion of the South' Africa Republic, and on the conclusion of
the Boer War a British Protectorate was established by
Order in Council June 25, 1903. By Transvaal Ordinance
of 1904 the judges of the Supreme Court of the Transvaal
Courts. may act as judges of Circuit Courts in Swaziland. Other

courts have since been established, known as the Special
Court for Swaziland and the Court of the Resident Com-
missioner. From the Circuit Court the appeal lies to the
Supreme Court of the Transvaal, and thence to the Pi ivy
Council as provided in the South Africa Act.

Rules of By an Order in Council, dated October 13, 1910, and

appeal. amended by order of March 4, 1911, an order of 1907 is

revoked and fresh provision is made for the regulation of

appeals from the other courts in the Protectorate. They

RULES OF APPEAL FOR THE COLONIES, ETC. 91

provide that an appeal shall lie as of right from any final judg-
ment of the Court of the Resident Commissioner, where the
amount involved is of the value of 500/., and from any final
judgment of the Special Court where the matter in dispute
or the amount involved is of the value of 500/., or from any
final judgment given in an action for divorce or a declaration
of nullity of marriage. There is an appeal at the discretion
of the court from any other judgment. Application to the
court for leave to appeal must be made within forty-two
days (W)-

IV. APPEAL FROM OTHER PARTS OF THE BRITISH
DOMINIONS.

THE CHANNEL ISLANDS AND THE
ISLE OF MAN.

The conditions of appeal to His Majesty in Council from
the Channel Islands and the Isle of Man are peculiar and
exceptional. The right of appeal was established at a
period before the practice of the Judicial Committee had
become standardised ; and the conditions laid down by the
Acts, Charters and Orders in Council have remained un-
changed, while the circumstances of the tribunal and
the value of money have altered considerably. The
Judicial Committee remains the ordinary Appeal Court from
the court of the Channel Islands and the Isle of Man ; and
cases may be brought up for review from those places of far
smaller substance than from any other part of the dominions.

JERSEY.

The Island of Jersey is part of the dominions of the History.
Crown in right of the Duchy of Normandy, and with the
other Channel Islands passed under English sovereignty when
William the Conqueror established himself on the throne.

Before the Conquest there had been a right of appeal
from the courts of the islands to the Duke of Normandy
and his Council, and this was the origin of the present
right of appeal to the King in Council, which was asserted

(dd) When the Special Court is not sitting, the Court of the
Resident Commissioner has jurisdiction in its place to determine any
application for leave to appeal from the Special Court or any other
matter in connection with the appeal (R. 28).

THE PRACTICE OF THE PRIVY COUNCIL.

The Koyal
Court.

Respondent
to be sum-
moned to
appear within
forty days.

Appeal only
from defini-
tive judg-
ment.

Appeal within
three months

as early as the reign of Edward III. In addition to the
right to bring judicial appeals the Channel Islands can
refer questions of legislation and executive government to
the Privy Council, which has a special committee to deal
with their affairs. The States (the local legislature) have
frequently contended that an Order in Council requires
registration in the Eoyal Court before it becomes law.

The Royal Court is the court of judicature of the island.
There is an appeal to the full court, and from this lies the
appeal to His Majesty in Council. An Order in Council of
1572 relates to the appellate jurisdiction in relation to cases
from Jersey. A number of intermediate Orders in Council
affecting appeals from one or other or both of the islands
need not be noticed, but an Order of July 5, 1835, provides
that appeals from the islands of Jersey and Guernsey shall
be subject to the same regulations as to setting down for
hearing and being heard as shall from time to time be in
force with regard to appeals to His Majesty in Council from
His Majesty's colonies and plantations abroad ; and it is
further ordered that henceforth, in all appeals to His
Majesty in Council from the said islands, the respondents
thereto be summoned by the proper officers of the said
islands respectively to appear and answer to the said appeals
within forty days from the said respondents being so
summoned.

Rules of appeal especially applicable to Jersey are
embodied in the Jersey Code, 1771, which directed :

That no appeal in any cause or matter, great or small, be
permitted or allowed before the same matter be fully
examined and ended by definitive sentence (e).

That every appeal shall be presented within three months

(e) Esnouf v. Att.-Gen. of Jersey (Jersey, 1883), 8 A. C. 304. An
order directing defendant to plead to an information and to be tried
by a jury is not a definitive sentence : per Lord Blackburn, ibid. 305.
An order for the custody of children in a suit for judicial separation,
although purporting to be a provisional order, is a definitive sentence
with respect to the custody. Belson v. B. (Jersey, 1849), 7 Moo. 30.
Where the Vicomte of Jersey reports to the Royal Court that certain
parties have repudiated the succession to a deceased person, and this
report is confirmed by the Royal Court, the failure to assert an appeal
by those parties within time Avill amount to an admission, and the
Judicial Committee will not interfere. Le Feuvre v. Le Feuvre
(Jersey, 1837), 2 Moo. 70.

RULES OF APPEAL FOR THE COLONIES, ETC. 93

next ensuing the sentence or judgment given therein (/),
except there be in the cause a lett or impediment to be
proved before their lordships, being the judges of appeals,
and by their lordships allowed.

That no appeal be hereafter received without the copy, as Copy record
well of the sentence or judgment, as also of the whole ^^in eisht
greffe of the cause, closed together under the seal of the ays<
isle. And, that there be no lett or hindrance to the appel-
lants in the hearing thereof, it is ordered by the said lords
that the bailiff and jurats of the isle, from whom the appeal
shall be made, shall, upon request made to them, deliver or
cause to be delivered to the said parties appellant the said
copy within eight days after such request.

The copy of the record is to include all the pleadings, the
evidence, and decisions of the court with reference thereto,
and the judgment. Jersey Code, 1771, p. 170.

There is no provision made for security being given by the Security,
appellant from Jersey by any Order in Council. The Judicial
Committee ordinarily direct security to be given by the
appellant in the sum of 100£ in appeals from the Channel
Islands instead of 300Z., the usual amount in appeals from
the colonies. Cf. Ex parte Baudains (1888), 13 A. C. 832.
As to the appealable amount, it was provided by an Order in
Council of 1671 that no appeal for movable goods or
personal estate be henceforth allowed unless it be of the
value of 300 livres tournois per annum, nor for inheritances Appealable
or other real estate unless of the value of 5 livres tournois valjie in
per annum.

The value of " livres tournois " depended on the current
price of grain. In 1811 the exchange was 24 livres to the I/.

In case of personal estate, the appealable amount was raised Appealable

in 1835, by Art. 14 of an Act of the states to 8<M., and is now value inlf

person jilt v ,

upwards of 200/. sterling.

The Jersey States Act, March 7, 1862, confirmed by
Order in Council, April 26, 1862, provides as follows :

1. La decision du nombre inferieur de la Cour Royale Appeal to
sera final et sans appel dans tous les causes mobilieres, oil ful1 court-
1'objet en iitige n'excedera pas vingtcinq livres sterling.

(/) In re Ames (Jersey, 1841), 3 Moo. 409 ; In re Whitfidd (Jersey,
1845), 5 Moo. 157. In this latter case the petition by way of doleance
was also described as a petition of appeal. Such proceedings are
separate and distinct.

THE PRACTICE OF THE PRIVY COUNCIL.

Appealable
ralue 2001.

Prerogative.

Absence of
notes of
evidence.

Leave to
appeal.

3. La decision du corps de cour sera final et sans appel
dans les causes mobilieres ou 1'objet en litige n'excedera pas
deux cents livres sterling.

4. II est entendu qu'aucunes des dispositions de la presente
loi ne pourront etre interpreters comme portant atteinte a la
prerogative de sa majeste en conseil.

By an Order in Council of 1885, confirming the other Act
of the states, it is provided that :

It shall not be permissible to either party, after the
evidence in the case has begun, to demand that the deposi-
tions shall be reduced into writing except in a case
susceptible of appeal to Her Majesty in Council.

Either party may ask to have the depositions of the wit-
nesses written down. When this request has been made, and
either no notes have been taken, or the Royal Court has
refused leave to appeal, an application, in the alternative, for
special leave or by way of doleance, may be made to Her
Majesty in Council.

If, however, a party has omitted to ask that the evidence
should be reduced to writing before the evidence is entered
upon, and the Royal Court has refused leave to appeal upon
this ground, the fact must be disclosed upon application for
special leave to appeal, or the applicant should show that he
is unable to ascertain the ground for refusal. When a judge's
notes have been taken not in pursuance of any law or
practice requiring them, they are private memoranda, and
it would be improper to have them before the Court of
Appeal. Exparte Baudains, 13 A. C. (Jersey, 1888), 832.

Leave to appeal must be asked upon judgment being given,
and the court has no discretion in granting or refusing.
(Report of Commissioners on Jersey Law, 1861.) Security to
prosecute the appeal and to abide the award has to be given
within eight days. The appellant has to find two sureties
within that period, and the appeal stands recorded. The
Greffier (Registrar of the Royal Court) must send by post
one certified copy of the transcript record to the Registrar
of the Privy Council as soon as the appellant has given his
sureties. Within three months (see Code Rules, 1771) of
the judgment, the appeal must be presented. In practice,
this is considered complied with if the appellant lodges
his citation of appeal and obtains a summons under the

RULES OF APPEAL FOR THE COLONIES, ETC. 95

Order in Council of 1835 for respondent to appear within
forty days. The judges of the court appealed from should
give the reasons for their judgment. Spurrier v. La Cloche,
(1904) A. C. 44C.

If leave to appeal is refused, the party may apply for
redress to His Majesty in Council by doleance, or may
petition His Majesty for special leave. If an appeal is Special leaye.
made by way of doleance, a letter is sent from the Council
Office desiring the court to state the reasons of their
refusal, to which they return answers signed by the bailiff.
The law of doleance (i.e., a complaint or grievance) is peculiar Petition of
to the Channel Islands, and is rather in the nature of a
complaint against the judges or the Royal Court itself than
an appeal.

As to when a doleance should be presented, see Re Tupper When
(Guernsey, 1834), 2 Knapp, 201 ; Le Gros v. Le Breton
(Jersey, 1833), ibid. 181. There must be a complaint
against the judge. In re Ames (Jersey, 1841), 3 Moo. 409 ;
In re Whit field (Jersey, 1838), 2 Moo. 269. There the
Royal Court pronounced judgment in a case in which counsel
appeared for defendant without being duly authorised.
Defendant applied by way of doleance to Her Majesty in
Council, but the Judicial Committee held that there was no
ground for doleance, and that the petitioner should have
applied to the court, on the ground of mistake or mis-
representation, for a rehearing. The petition and doleance
was ordered to stand over for a month to enable the
petitioner to apply to the court below to rehear. The
petitioner, however, on making such application to the
court below, failed to put it on the right ground. See, too,
In re Gould (Jersey, 1838), 2 Moo. 188; & Attain v. Le
Breton (Jersey, 1857), 11 Moo. 64; Petition and Doleance
of Kicolle (Jersey, 1879), 5 A. C. 346.

When it is intended to petition by way of doleance, a
petition should be presented intituled " The Humble Petition
and Doleance of " (the person seeking relief), and should
show the orders from which relief is required, and conclude
by asking that the petitioner may have special leave to appeal
to His Majesty in Council against the orders complained of;
or that the merits of the case may be inquired into on the
hearing of the petition by way of doleance, and that the

THE PRACTICE OF THE PRIVY COUNCIL.

Petition
verified by
affidavit.

Practice in
doleance.

Ecclesiastical
appeals.

O. in C. of
General
Application,
1667.

Jersey 0. in C.
1698.

Suspension of
execution in
capital cases
till pleasure
known.

orders, etc. may be reversed or varied, etc. The petition
should be supported by affidavit. Upon such petition being
heard, it is the practice of the Judicial Committee to order
that the petition and doleance, together with the affidavit
or affidavits, be referred to the Royal Court of the island
for such observation as the judges may think right to
make thereon, with leave to the petitioner to be heard in
support of the allegations contained in such petition and
doleance after the answer of the Royal Court has been
received.

The practice of the Judicial Committee is to hear petitions
of doleance on manuscript papers, and not to require the
record to be printed.

An Order in Council of May 19, 1671, provided,
" doleances being of an odious nature, as intended principally
against the judges whose honour is to be maintained for the
sake of justice, in case the complainant shall not make good
his doleance, His Majesty, by the advice of the Council, will
lay such fine on the party failing as the cause shall require."
This is now incorporated in the Jersey Code of 1771,
p. 168.

In Ecclesiastical appeals it is directed by Canon 56 of
James I. (1623), appeals are to be heard by the Bishop of
Winchester in person, or, if the See is vacant, by the
Archbishop of Canterbury.

Appeals in Criminal Cases.

Whether there is a right of appeal in a criminal case from
Jersey is a matter of doubt. Shortly after the passing of
the Order in Council of February 12, 1667, an appeal was
received in a criminal case, and referred thereunder to the
Attorney-General, March 13, 1689. From this case it appears
that at that time the law of Jersey drew no distinction
between murder, manslaughter, and chance medley. There
a man had been convicted of homicide when the facts
disclosed nothing other than accident or chance medley. See
Parl. Rep., Channel Islands, Crim. Law Com., 1847 — 48,
p. xvi. The result was that an Order in Council, June 23,
1698, was issued directing that in future the execution in
cases above mentioned should be stayed till His Majesty's
pleasure is known.

RULES OF APPEAL FOR THE COLONIES, ETC. 97

In the year 1790 the state of the Jersey criminal law
again claimed the attention of the Privy Council. See John
RivoVs Case (Par!. Rep., Channel Islands, Grim. Law Com.,
1847 — 48, p. xi.), where the Royal Court, acting upon an
analogous practice in a case of burglary, stayed the execution
of the punishment until the pleasure of His Majesty in
Council was known. These cases go to show that the
Sovereign has also exercised a supreme control even in
criminal cases. Some confusion, however, seems to hare
arisen between the appeals from Jersey and Guernsey
in criminal cases. In the latter island, by an Order in Guernsey
Council, dated October 9, 1580, appeals were forbidden in ^t^
criminal cases. The Order was cited in Re Tupper (Guernsey,
1834), 2 Knapp, p. 201. There is no provision of the kind
in the Jersey Code of 1771, and apparently no Order in Coun-
cil prohibiting appeals in criminal cases from Jersey (g). In
the answers to questions submitted by the Commissioners in
1846 and 1847, it was generally stated there was no appeal,
but that the practice is, when a person is sentenced to death,
to stay execution to enable him to appeal to the Crown for
mercy.

GUERNSEY.

Guernsey, with its dependencies Alderney, Sark, Jethou, and History.
Herm, very much resembles Jersey in its history and constitu-
tion. The islands have their own legislature and are not
affected by the Imperial Statutes unless expressly named.

The Royal Court (Chefs Plaids) is understood to have Guernsey
been erected by Royal Charter in the reign of King John. °- in c- 158°-
Besides its judicial functions, it makes ordonnanres for the Tlae Courts,
better enforcement of the law. It consists of the bailiff and
twelve jurats (or unpaid judges), and has civil, criminal, and
ecclesiastical jurisdiction. The jurats are elected for life.
The bailiff and two jurats form a court. There is an appeal Cour des
from the ordinary court to a full court of the Royal Court JuSements-
which is called the Cour des Jugements, and from this
latter court the appeal lies to His Majesty in Council.

An appeal lies from the courts in Alderney and Sark to

(g) Cf. Esnouf v. Att.-Gen. for Jersey (Jersey, 1883), 8 A. C., at
p. 307, in which the Judicial Committee expressed grave doubts
whether appeals lay in criminal cases from Jersey, but mentioned that
in Ames' Case, 3 'Moo. 409, the appeal was referred to the Privy
Council as Privy Councillors to advise generally.

P.O. 7

THE PRACTICE OF THE PRIVY COUNCIL.

the Royal Courts (cf. Guernsey Orders, 1824 and 1832), and
thence to the Privy Council. Godfrey v. Constables of SarJc,
(1902) A. C. 534.

Rules of A number of early Orders in Council, dating from 1495,

appea . ^Qs^ w^ appeals from Guernsey, but the conduct of appeals

is now regulated by an Order in Council of May 3, 1823,
and by the Order in Council of 1835, which applies like-
wise to appeals from Jersey, and by an Order in Council
of 1853.

The first Order provides that an appeal to His Majesty
in Council shall be confined to cases where the object in
dispute, if real property, amounts to the value of 10/. sterling
per annum, or if personalty of 200?. sterling, and that such
appeal shall be presented within six months from the date
of the judgment appealed from.

The Order of 1835 applies the provisions of the Orders
in Council of general application relating to setting down and
hearing appeals, and directs that in all appeals the respondent
is to be summoned to appear and answer within forty days.
An Ordinance has been passed (1853) pursuant to the Order
in Council of that year which contains the rules of procedure
in cases of appeal.

ORDONNANCE sur la procedure en cas d'appel.

1. Lorsqu'une partie sera admise par Acte de la Cour
Royale a se porter, soit pour Appellant soit pour Doleant a
S. M. et aux Seigneurs de son Tres- Honorable Conseil Prive,
d'une Sentence de la dite Cour, toutes les parties dans la
Cause seront, par le meme Acte, envoyees devant un Jur6,
Commis de la Cour, pour devant le dit Commis faire Inven-
taire et Norre de toutes les procedures de la Cour, ainsi
que des Pieces qui auront et6 produites en Jugement.

2. Est le dit Commis autorise" a proceder au dit Inventaire
et Norre a 1'instance d'une des parties en cause dans
1'absence des autres parties, pourvu qu'il lui soit produit
une Relation par ecrit constatant que les parties absentes ont
ete dument ajournees.

3. Toutes les Pieces qui seront produites dans une Cause
en Jugement seront lues et paraphe"es comme Pieces du
proces par le Greffier de la Reine qui en fera une liste.

4. Le Greffier de la Reine recevra une Honoraire de Trois

RULES OF APPEAL FOR THE COLONIES, ETC.

Pennis par chaque Piece lue et paraphee au fin de 1'article
precedente.

5. Si la Cause en Jugement est pour fair droit sur un
Rapport par 6crit, la partie qui ajournera la Cause sera
tenue de fair fair, par le Greffier de la Reine, un Copie du
dit Rapport, pour etre la dite Copie livree a M. le Baillif
trois jours pour le moins avant le jour pour lequelle la
Cause est ajourn6e : faute de quoi la Cause ne passera
pas. Et sera le dit Rapport, lors du Jugement, lu par le dit
Greffier. Le montant paye au Greffier de la Reine pour la
dite Copie sera charge dans le compte des frais curiaux.

6. Si 1'Appel en Jugement est dans une Cause dans
laquelle des Depositions ont ete prises a future et redigees
par ecrit, la partie qui ajournera la Cause en Jugement sera
tenue de fair fair, par le Greffier de la Reine, une Copie
des dites Depositions, pour etre la dite copie livree a M. le
Baillif trois jours au moins avant le jour pour lequel la
dite Cause est ajournee ; faute de quoi la cause ne passera
pas. Et seront les dites Depositions, lors du Jugement,
lues par le dit Greffier. Le montant paye au Greffier de
la Reine pour la dite Copie sera charge dans le compte des
frais curiaux.

7. Les Pieces du proces pourront etre depose'es au Greffe,
a la requete d'une des parties en cause, lors du Jugement, et en
ce cas la partie qui fait la Requete paiera au Greffier de la
Reine un Honoraire de Six Schellings Huit Pennis Sterling.

8. Les dites Pieces seront rendues a la partie qui les aura
produites, apres le lapse de trois semaines, a moins que la
Relation d'un Ajour, i\ se voir porter Appellant a S. M. en
son Conseil de la Sentence de la Cour en Jugement n'ait
ete notified par 1* Appellant au Greffier de la Reine.

9. La Partie qui aura produit une Piece pourra la retirer
du Greffier, me me avant 1'expiration des trois semaines, en
faisant fair, a ses propres frais, par le Greffier de la Reine,
une Copie de la dite Piece.

10. Toutefois, pourra la Cour requerir qu'une Piece depose'e
au Greffe y reste jusqu'a ce qu'elle en ordonne.

Caution money by way of security in the sum of 10/. is
required to be deposited, to be forfeited to the poor of the
island, as well in appeals as also where the judgment is
complained of by way of doleance. The Order in Council Security

7—2

100

THE PRACTICE OF THE PRIVY COUNCIL.

Criminal

cases.

A possession,
not a colony.

Law in force.

High Court
created.

I. of M. Jud.
Act, 1883.

The Staff of
Government
Division.

of general application which requires security to be given
to prosecute appeals from " foreign plantations " does not
apply to the Channel Islands. The appellant was required
by the Guernsey Order in Council of October 9, 1580,
to give security to prosecute and to pay costs in the event
of being unsuccessful. Now, however, unless the Judicial
Committee otherwise direct, the successful appellant can
recover the cost of appeal from the respondent. The rules as
to doleance are the same as those which apply to Jersey (see
above, p. 95).

No appeal lies in a criminal case from Guernsey by virtue
of an Order in Council of 1580, which declares that " It
shall not be lawful to appeal in any cause, criminal or of
correction." Re Tupper, 1834, 2 Knapp, 201.

THE ISLE OF MAN.

The Isle of Man is not in the United Kingdom, nor is it
a foreign dominion of the Crown (h\ nor a colony (a), but is
included within the term " British Islands " by the Inter-
pretation Act, 1889.

It came into the allegiance of the English Crown in the
reign of Henry IV., but until 1735, with the exception of an
interval in the reign of Elizabeth, it was held in fee of the
Crown by the house of Stanley on terms of doing homage.

The island is under the government of a Governor
appointed by the Crown. The legislature consists of the
Governor in Council and the House of Keys. The island is
subject to its own common law.

His Majesty's High Court of Justice of the Isle of Man
was created a Superior Court of Record by the Isle of Man
Judicature Act, 1883 (k). There are three divisions : the
Chancery Division, the Common Law Division, and the
Staff of Government Division, to which the appellate juris-
diction has been transferred (I). Sects. 18, 28. The last-
named division hears all appeals (including appeals from
the Ecclesiastical Courts in probate, administration,

(h) In re Brown, 3 L. J. Q. B. 193.

(i) 52 & 53 Viet. c. 63, s. 18 ; and the Colonial Laws Validity Act
(28 & 29 Viet. c. 63).

(k) Act of Tymvald (46 Viet.), April 6, 1883.

(I) Cf. Lewin v. Killey (Isle of Man, 1888), 13 A. C. 783. Cf. Gill v.
Westlake, (1910) A. C. 197.

RULES OF APPEAL FOR THE COLONIES, ETC. 101

testamentary, and matrimonial causes (sect. 46) ) from the
High Court, and is composed of at least three judges of the
High Court, the Governor being one.

The right of the Crown to hear appeals from the courts Appeal,
of the island was asserted by the Privy Council in 1716, in
the case of Christum v. Comi. The correctness of this
decision has never since been questioned ; and the Isle of
Man Judicature Act, 1883, provides :

*k The judgments of the High Court in the Staff of Govern- Appeals to
ment Division may be appealed from to His Majesty in ^CoSJcif7
Council, and the provisions of the Act of Tynwald promul- preserved,
gated on June 24, 1737, respecting appeals, and all the
regulations at present existing respecting appeals to Her
Majesty shall apply to the said court." Sect. 34.

No regulations exist as to the appealable amount.

The Act of Tynwald referred to provides :

" That any person or persons who now have or hereafter Appeals to
shall have any appeal or cause of appeal from any decree,
order, sentence, judgment, or proceeding of any of the courts months,
or magistrates of this isle whatsoever, or from the said
Keyes to any superior judge of appeal, shall and are hereby
obliged to prefer his or their appeal or appeals for acceptance,
and enter into bonds thereon in order to an effectual prose-
cution within six months from and after the publication of
this Act, or within six months next after the decree, order,
sentence, or judgment is made or given against them, or any
of them, otherwise they, and all persons claiming under
them, to be excluded and barred (whether plaintiff or
defendant) from the benefit of any appeal for ever after, any
law, custom, usage or practice to the contrary in anywise
notwithstanding."

Another Act of Tynwald (1850), the Security on Appeal
Act, provides that it shall be lawful for any party appealing
from " a Superior Court to Her Majesty in her Privy Coun- Sect. 2.
cil to prosecute such appeal without entering into such bond ppea *
thereinbefore prescribed, or into any of the securities now
by law required to be entered into for the effectual prosecut-
ing such appeals and the paying the amount of the judgment
appealed from. Provided that such appellant, in his petition Conditions
of appeal, declare that he does not object to the decree, of
judgment, verdict, execution, or order given against him

102

THE PRACTICE OF THE PRIVY COUNCIL.

Bonds to pay
costs.

Criminal

Cession.

Colonial
Court of
Admiralty.

Rules of

being carried into effect according to law, on which condition
he shall only be required to enter into bonds to pay such
costs as may be awarded against him, and on the condition
also that the respondent shall not be obliged to render and
return to the appellant more than the net proceeds of the
execution, with interest thereon at the rate of 3 per cent,
per annum on the sum recovered, or the restitution of the
real property and of the net value of the produce and
revenues of the real property whereof the respondent has
been put in possession by virtue of the decree, judgment,
execution, verdict, or order as aforesaid, to take place from
the day he recovered the same, or possessed the real property,
until perfect restitution is made, without any damages
against the respondent by reason of the said decree, judg-
ment, execution or order, in case the same is reversed, any
law, custom, or usage to the contrary notwithstanding."

An appeal lies in criminal cases from the Court of General
Gaol Delivery (cf. Nelson v. King, (1902) A. C. 250, where
a conviction was quashed by the Privy Council). Special leave
to appeal in a criminal case will only be granted upon the
principles which the Judicial Committee applies to all criminal
appeals. Cf. Exparte Aldred, (1902) A. C., 81, where special
leave was refused in a case in which the sentence was
founded on the verdict of a jury and there was evidence for
the jury.

GIBRALTAR.

Gibraltar was taken in 1704, and ceded by the Treaty
of Utrecht in 1713. The Supreme Court, which was con-
stituted by an Ordinance of 1888, has original unlimited
civil jurisdiction, and is a Colonial Court of Admiralty
(Colonial Courts of Admiralty Act, s. 2 (1)).

By an Order in Council of 1888 provision was made for
appeals to the Privy Council, and by an Order in Council,
1894, it was provided that an appeal should lie from orders
in bankruptcy made by the Supreme Court to the Privy
Council subject to the rules and limitations of the earlier
Order. These sections are now repealed and new regulations
governing all appeals are made by an Order in Council (m) of
August, 1909, which fixes the appealable amount at 300/., and
the limit of time for asking leave to appeal at twenty-one days.
(m) The Order embodies the Colonial Appeal Rules. See Ch. II.

RULES OF APPEAL FOR THE COLONIES, ETC. 103

The rules of appeal in Admiralty causes are contained in
an Order in Council of February 6, 1892, amended by an
Order of April 22, 1910, which is given in Part III. (See,
infra, p. 3G9.)

MALTA.

Malta was captured in 1800, and permanently annexed by
the Treaty of Paris in 1814. Malta is subject to its own Law in force.
Maltese law.

The Superior Courts are His Majesty's Commercial Court, Courts.
His Majesty's Civil Court, and His Majesty's Court of
Appeal, which was established by local Ordinance in 1839
(No. III.). The civil court is divided into the first and
second hall, and the Court of Appeal is likewise divided into
the first and second hall. In the first hall of the civil
court contentious matters are heard, and non-contentious in
the second hall. The judgments of the first hall may be
appealed to the second hall of the Court of Appeal. Appeals
from the commercial court lie to the first hall of the Court of
Appeal. No appeal lies from the second hall of the civil court.

The rules for appeal to the Privy Council are now laid
down by an Order in Council of November 22, 1909 (n),
which provides for an appeal as of right from the Court of
Appeal when the subject-matter is of the value of 500Z.
or upwards. Application to the court for leave to appeal
must be made by petition within twenty-one days. Special
rules are made for the translation of such parts of the record
as are in Italian as follows :

14. At the instance of either of the parties, the registrar Rules for
shall, at the expense of the applicant, also transmit to the translation.
Registrar of the Privy Council an English translation of
such part or parts of the record as are in Italian.

Provided that the registrar shall not transmit any such
translation :

(a) Unless the same has been made by a notary public
or by some person appointed for that purpose by the
parties or, at the instance of any of such parties, by the
court ; and

(b) Until the parties have been given, as hereinafter
directed, an opportunity to peruse the same.

(n) See n. (ra), sujira.

THE PRACTICE OF THE PRIVY COUNCIL.

15. The translator shall certify that the translation was
made impartially and to the best of his ability, and he shall
append his signature thereto.

16. For the perusal of any such translation, each of the
parties shall be allowed as many days as correspond to one
day for every fifteen pages of one hundred words each, to
be reckoned from the day following the service of the notice
mentioned in the next paragraph of this rule.

As soon as any portion of such translation is completed,
any of the parties may deposit the same in the registry of
the Superior Courts ; whereupon the registrar shall, on pay-
ment by such party of the requisite fee, give notice to the
other party of the deposit of such portion of the translation.

17. For the purpose of the perusal of the translation or
any portion thereof, the appellants, whatever may be their
number, shall be deemed to be one party and the respondents
the other party, and one period shall be allowed to either for
such perusal as aforesaid. Provided that any portion thereof
which shall be deposited in the registry as aforesaid shall
continue to be accessible to any one of the appellants or of
the respondents until the period for the perusal of the last
portion shall expire.

18. Any of the parties may file in the registry any state-
ment of remarks purporting to show that the translation is
not correct. Such statement shall be signed by an advocate
and shall be forwarded by the registrar with the translation
or as soon after as practicable.

19. The registrar shall intimate to the party applying for
the transmission of a translation to the Kegistrar of the Privy
Council, that nothing in the foregoing rules shall preclude
the other party from impugning before the Judicial Com-
mittee of the Privy Council the correctness of such translation.

BRITISH GUIANA.

Law in force. This colony was ceded by the Dutch in 1814, and the Roman-
Dutch law in force in Holland prior to the French Revolu-
tion is still the civil law in force in the colony, by virtue
of the capitulation of September 18, 1803. The English
mercantile law was introduced by Ord. 6 of 1864, s. 3.
The Supreme Court of British Guiana was constituted in

RULES OF APPEAL FOR THE COLONIES, ETC. 105

1893 by uniting the Supreme Court of Civil Justice and the
Supreme Court of Criminal Justice.

The Supreme Court is also a Colonial Court of Admiralty Appeal.
(Ord. 7 of 1893, s. 3). Provisions for the regulation of
appeals to the Privy Council were made by an Order in Council
of January 10, 1910, which revokes the rules relating to
appeals in the old Order in Council of 1831. The appealable
amount is fixed at 500/., and the limit of time for asking
leave to appeal is fourteen days. The Colonial Appeal Rules
are embodied.

BRITISH HONDURAS.

British Honduras is a settled colony which was Law in force,
formally annexed to the Crown by proclamation dated
May 12, 1862. Cf. Att.-Gm. for British Honduras v.
Bristowe (1880), 6 A. C. at p. 148. The colony was
granted a constitution and the legislative powers vested in
a Governor and a Legislative Council by Letters Patent
dated October 2, 1884.

The Supreme Court of the colony possesses the juris-
diction conferred by the Supreme Court of Judicature Act,
1873, on the Queen's Bench, Chancery, and Probate Divisions
of the English High Court, as well as full criminal juris-
diction. Consolidated Laws, 1887, part V., c. VIII., s. 29.

By an Order in Council, dated November 30, 1882, the Appeal Court.
Supreme Court of Judicature of the island of Jamaica was
constituted a Court of Appeal for hearing appeals from
judgments of the Supreme Court, but by an Order in Coun-
cil of August 8, 1911, the Order is revoked.

Appeals to the Privy Council from the Supreme Court Appeal to
are now regulated by a local Ordinance (No. 5 of 1911) P' C*
which prescribes an appeal of right from a final judgment
where the value of the suit is $1,500 or upwards (0).

Application for leave to appeal must be made within
twenty-one clear days. The security ordered must not exceed
$2,500. The Chief Justice has power to make further rules
which must be approved by the Secretary for the Colonies.

The Colonial Courts Admiralty Act was brought into Admiralty
force for the colony by an Order in Council of May 4, 1911.

(o) The appeal may be brought from a judgment of the Chief
Justice in cases under Ch. 106 of the Consolidated Laws.

106

THE PRACTICE OF THE PRIVY COUNCIL.

A settled
colony.

Supreme
Court.

Kules for
appeal.

A settled
colony.

The Supreme
Court.

Appellate
jurisdiction.

Kules of
appeal.

FALKLAND ISLANDS.

The Falkland Islands are a settled colony. The charter
of government was conferred by Letters Patent, dated
June 23, 1843, in pursuance of the powers contained in
6 & 7 Yict. c. 13, s. 1. By Ordinance No. 2 of 1898 the
Supreme Court possesses within the colony the powers
possessed by the Courts of Queen's Bench, Common Pleas,
and Exchequer, the High Court of Chancery, the Lord
Chancellor and Vice-Chancellor, the courts of oyer and
terminer and general gaol delivery, and the Court of
Probate in England ; and also has jurisdiction in insolvency
and bankruptcy, and under any Ordinance respecting
matrimonial and divorce cases.

The regulations for appeal to His Majesty in Council
are now contained in the local Ordinance of 1909 (No. 5),
which fixes the appealable amount at 500Z., and the time
within which application must be made for leave at twenty-
one days. The Ordinance repeals the earlier regulations con-
tained in an Ordinance of 1901, and sect. 25 of Ordinance
No. 4 of 1901, and adopts the Colonial Appeal Rules.

THE GOLD COAST AND ASHANTI.

The Gold Coast formed part of the territories formerly
the property of the company of merchants trading to Africa,
which were vested in the Crown in 1821 by 1 & 2 Geo. IV.,
c. 28, and afterwards became known as the West African
Settlements. The government of the colony is vested in a
Governor, and in 1886 the colony of Lagos was detached,
and since then the Gold Coast has been a separate colony.

The Supreme Court was constituted by a local Ordinance
of 1876 (No. 8) ; and under the African Order in Council,
1889, it was constituted the Appeal Court from the British
courts in the Congo Free State. By Ordinances Nos. 1
and 2 of 1902 of the Gold Coast Colony, No. 1 of 1902 of
Ashanti, and No. 1 of 1902 of the Northern Territories of
the Gold Coast, the Supreme Court was constituted the
appellate court from the British courts in these jurisdictions.
An Order in Council of 1877 regulated appeals from the
Supreme Court to the Privy Council, but this has been
revoked and fresh regulations made by an Order in Council
of March 2, 1909. By this Order the appealable amount

RULES OF APPEAL FOR THE COLONIES, ETC. 107

is fixed at 500/., and the limit of time for an application
for leave to appeal is fixed at twenty-one days. The Colonial
Appeal Rules are embodied.

HONG KONG.

The colony is administered by a Governor, with an
Executive Council and Legislative Assembly.

Hong Kong was ceded in perpetuity by the treaty of A ceded
Nanking (1842), in order that British subjects should have colony'
a port at which they could refit and keep their stores.
The court then established under the statute 3 £ 4 Will. IV.
c. D3, at Canton was transferred to Hong Kong. The Supreme
court of Hong Kong was abolished by Ordinances No. 15 of Court created-
1844 and No. G of 1845, and the Supreme Court of
Hong Kong created a Court of Record. The Supreme
Court is a Colonial Court of Admiralty under the Act of
1890. It has jurisdiction also over the town of
Kowloon on the mainland, and over British subjects within
the peninsula of Macao.

An Order in Council of August 3, 1909, revoking instruc- Appeal to
tions of 184G which had hitherto laid down the rules of the p- c<
appeal from the Supreme Court of the colony of Hong Kong
and its dependencies to the Privy Council, provides that an
appeal shall lie as of right from any final judgment when
(a) the matter in dispute is of the value of $5,000 or
upwards, or there is a question of property or some
civil right of that amount ; (b) in other cases at the discretion
of the court. Application for leave to appeal must be made
within fourteen days from the date of the judgment appealed
from. The applicant shall give the opposite party seven
days' notice of his intended application at any time during
the period of fourteen days. The security for costs must
not exceed $5,000. The Colonial Appeal Rules are adopted.

MAURITIUS AND THE SEYCHELLES.

Mauritius was taken from the French in 1810. By the Conquered
capitulation the laws and customs of the island, which are c°l°ny-
based on the Code Civil and other French laws, were
guaranteed to the inhabitants, and the island was ceded by
Art. 8 of the Treaty of Paris, 1814.

The island is administered by a Governor with an Execu-
tive and Legislative Council.

108

THE PRACTICE OF THE PRIVY COUNCIL.

Supreme
Court.

Appeals.

Settled
colonies.

Supreme
Court,

The Supreme Court was created by Ordinance 2 of 1850,
approved by Order in Council dated October 23, 1851.

Further provisions for the improvement of the adminis-
tration of justice in the island were made by Orders in
Council of February 23, 1836, April 26, 1845, and
December 12, 1894.

All these Orders and Ordinances, so far as they relate to
appeals to the Privy Council, are revoked by an Order in
Council, dated February 18, 1909, which provides that
the appealable amount shall be Rs. 10,000 or upwards, the
limit of time for application for leave to appeal twenty-one
days, and the maximum security for costs Rs. 5,000 (p).

There is no appeal as of right in divorce (D'Orliac v.
D'Orliac, 6 Moo. 374). Where leave below was granted
and no petition for special leave to appeal was brought, the
Privy Council dismissed the appeal.

SEYCHELLES.

The Seychelles Islands form a dependency of Mauritius.
An Order in Council of August, 1903, constituted a Supreme
Court of the Seychelles, and provides that where the value
of a civil suit is over Rs. 10,000 there shall be an appeal
direct to the Privy Council. A later Order in Council of
November 22, 1909, makes fresh regulations for appeals (p)
from the Seychelles. It does not, however, revoke the
Order of August 16, 1903, which fixes the appeal-
able amount, and no fresh provision is made in that
respect. Applications for leave to appeal are to be made
within twenty-one days, and the security for costs shall not
exceed Rs. 7,500.

SIERRA LEONE AND GAMBIA.

Sierra Leone was obtained by cession from native chiefs
and held under Royal Charter, and afterwards, in 1808,
under 47 Geo. III. c. 44, was transferred to the Crown.
In 1821 the colony with Gambia and the Gold Coast
became the West African Settlements under Charter
(1 & 2 Geo. IV. c. 28). In 1843 Gambia became a
distinct and separate colony, and after being again united
they were finally separated by an Order in Council of 1888.

The Supreme Court is a court of original jurisdiction for
(p) The Order embodies the Colonial Appeal Rules.

RULES OF APPEAL FOR THE COLONIES, ETC.

the colony, and is also the Appeal Court from the Supreme
Court of the colony of Gambia, which was established by
Ordinance in 1851 (Ordinance No. 4 of 1889).

Beyond the limits of the colony there is a British pro- Protectorate,
tt-ctorate over the territories adjacent to Sierra Leone, in
which courts have been established under the Foreign
Jurisdiction Acts. The chief court is the Circuit Court.

Provision for the regulation of appeals from the Supreme Regulations
Court of the colony and the Circuit Court of the pro- for appeals,
tectorate to the Privy Council is made by an Order in
Council of February 10, 1909, which fixes the appealable
amount for an appeal of right at 500?., and the limit of
time for an application to appeal at fourteen days.

SOUTHERN NIGERIA.

The kingdom of Lagos was ceded to the Crown of A ceded
England in 1861, and a Government was established by colony-
Letters Patent dated March 13, 18G3. On February 13,
1866, it was incorporated with the West African Settle-
ments. In 1886 it was constituted a separate colony under
a Governor and Legislative Council.

By an Ordinance of the Legislative Council, 1888, the Supreme
Supreme Court is declared to be a Court of Record, and c^^
one judge is competent to form it. There is, however, a Appeal.
'• full court," and this is to be the Court of Appeal.

By Letters Patent of February, 1901, it was provided Extension of
that the colony of Lagos should be known as the colony
of Southern Nigeria, and its limits were defined. Beyond
the colony there exists a British protectorate, in which
British courts of foreign jurisdiction are established.

By an Ordinance of the colony in pursuance of an Order
in Council of February 16, 1906, the Supreme Court was
constituted to be the Supreme Court for the protectorate
of Southern Nigeria.

Provision for appeals from the Supreme Court to His Regulation
"Majesty in Council is made by an Order in Council of
February 15, 1909 (q), which repeals an earlier Order in
Council of 1889, and provides that an appeal shall lie as
of right from any final judgment of the Supreme Court of
Southern Nigeria where the amount in dispute is 5007. or
(q) See n. (p), supra.

110

THE PRACTICE OF THE PRIVY COUNCIL.

upwards ; application for leave to appeal must be made
by notice within twenty-one days.

By an Ordinance of November 28, 1910, the Supreme
Court is constituted a Court of Admiralty. Sect. 2
(sub-sects. 2 and 4), sects. 5, 6, and 16 (sub-sect. 3) of the
Colonial Courts of Admiralty Act apply to it.

Transfer from
East India
Company to
the Crown.

Supreme
Court.

Regulations
for appeals.

ST. HELENA.

This island in the South Atlantic Ocean was formerly
under the government of the East India Company, who
held it under a Charter of 1674 from the Crown. On
April 22, 1834, it was transferred to the direct govern-
ment of the Crown by an Act of Parliament of 1833
(3 & 4 Will. IV. (Imp.) c. 85). The Governor is also
Chief Justice (the only judge in the island). The Order
in Council under the above Act creating "the Supreme
Court of St. Helena" as a Court of Record is dated
February 13, 1839. In accordance with it any person
may appeal to Her Majesty in Council from " any judg-
ment, decree, order, or sentence of the said Supreme Court."

The Order is amended by an Order in Council of
February 15, 1909, which provides that an appeal shall
lie as of right from any final judgment where the subject-
matter is of the value of 500/. or upwards, and at the
discretion of the court in any other case. Application for
leave to appeal must be made within fourteen days.

The Colonial Courts of Admiralty Act is applied to
St. Helena by an Order in Council of May 4, 1911.

Colony.

Supreme
Court.

THE WEST INDIES.-THE BAHAMAS,

This colony was first settled in 1629. The legislative
power is vested, by Letters Patent dated April 28, 1876,
in the Governor and a Legislative Assembly with an
Executive Council responsible to the Crown.

By the Bahamas Supreme Court Act, 1896 (59 Viet.
c. 26), s. 32, the Supreme Court is a Court of Record, and
exercises all civil jurisdiction, including all the jurisdiction
vested in the High Court in England. The Supreme Court

RULES OF APPEAL FOR THE COLONIES, ETC. Ill

possesses Admiralty jurisdiction under the Colonial Courts
of Admiralty Act.

Sects. 41 and 42 govern appeals.

41. Where in a civil action a final judgment or order Appeals to

is given or made by the court determining any claim or p- c-» in what

question, wherein the amount sought to be recovered, or

the value of the property in dispute is of the value of

5 001 or upwards, and where the amount sought to be

recovered or the value of the property in dispute is less

than 500/., then by leave of the court the party aggrieved

thereby may appeal to Her Majesty in Council, provided Provision for

that within one month from the date of such judgment or Securit7asto

order the appellant gives security to the satisfaction of the

court or the judge in an amount not exceeding 500?. for

the due prosecution of the appeal and the payment of all

such costs as may be awarded to the respondent by Her

Majesty in Council.

42. Upon the appellant giving security to its satisfac- Execution
tion for the performance of such order as Her Majesty suspended
in Council may think fit to make, the court shall suspend appeal!2
execution pending the appeal of the judgment or order
appealed from.

New rules for appeal have not yet been made.

By rules made under the Bahamas Supreme Court Act
the appellant must give notice in writing, either personally
or by his counsel or attorney, to the other side of his inten-
tion to appeal within ten days or within such other time as
the court or judge may allow (rule 562).

By sect. 38 of the Supreme Court Act, 1896, no appeal
is to lie in criminal cases ; but, semble, this does not bar
the prerogative.

BARBADOS.

Barbados was settled from England in the first half of Law in force,
the seventeenth century, and has ever since remained a
possession of the Crown.

The legislative power of the colony is vested by Letters Colony.
Patent dated March 17, 1885, in a Governor and a
Legislative Assembly with a Legislative Council, and is a
separate government from the other Windward Islands.

The established courts of the island are the Court of The Courts.

112

THE PRACTICE OF THE PRIVY COUNCIL.

Court of
Error.

Rules of
appeal.

Common Pleas and the Court of Chancery. The former has
the same jurisdiction as the Courts of Common Pleas, the
Queen's Bench, and the Exchequer had in England on
July 29, 1853 (Barbados Common Pleas Court Act, 1891,
s. 2). The Chief Justice hears appeals on questions of law
as a Court of Error from the assistant Court of Appeal (Act
No. 1 of 1891, s. 51). An Order in Council of March,
1889, established a Court of Appeal for Barbados and the
Windward Islands and made provision for appeals to the
Privy Council, but the rules under it are now revoked.

The Court of Appeal (Amendment) Act, 1898 (Ordi-
nance 2 of 1899), gives an appeal to the Court of Appeal
of the Windward Islands from any final judgment of
the Chief Justice of Barbados in the exercise of his legal,
equitable, or ecclesiastical jurisdiction. The Order in
Council of June 28, 1909, now regulates appeals to the
Privy Council both from the Windward Islands Court
of Appeal and the Chief Justice of Barbados in the
exercise of his legal, equitable, or ecclesiastical jurisdiction
on the same terms as are prescribed for appeals from the
other Windward Islands. (See below, p. 116.) The
appealable amount is 300/.

From the Courts of Common Pleas and of Chancery
application for leave to appeal direct to the Privy Council
must be made to the Judicial Committee. Cf. Wilson v.
CaUender, 9 Moo. 101. Trent- Stoughton v. Barbados
Water Supply Co., (1893) A. C. 502.

A settled
colony.

The legisla-
tive power.

Courts.

Appeals.

BERMUDA.

The colony was settled by a chartered company consti-
tuted under Letters Patent dated March 12, 1612. Since
1684 the laws of the colony have been enacted by a Legis-
lative Council, a House of Assembly, and a Governor
appointed by the Crown.

By a local Act of 1905 the Supreme Court was consti-
tuted, and by an Act of 1908 (No. 10) the Court of Error,
to which there had hitherto been a right of appeal, was
abolished. By the same Act an appeal to the Privy Council
is given from a final judgment :

(a) When the subject-matter is of the value of 300/. and

RULES OF APPEAL FOR THE COLONIES, ETC. 113

upwards, or from a judgment which shall relate to any title Appeal to
to land, or the taking or demand of any duty payable to supreme"1
His Majesty, or to any fee or office, or any annual rent or Court,
payment, or such like matter or thing, where rights in
future may be bound.

(b) From any judgment or order of the court for the
issue of the prerogative writ of mandamus whether
peremptory or otherwise.

(c) From any other judgment or order in any suit or
action where the court may think fit to grant leave. The
appeal must be commenced by a petition filed within twenty-
one days of the judgment appealed from, and it shall not
be allowed unless the appellant within thirty days after
obtaining leave gives security for the due prosecution of the
appeal within a year of the time of the allowance thereof.

The court may make other rules for the regulation of
appeals.

The Colonial Appeal Kules are not adopted by the
Ordinance.

JAMAICA AND TURK'S AND CAICOS
ISLANDS.

Jamaica was taken in 1655 from the Spaniards, by whom The Colony,
it had been settled ; and the title of England was finally
recognised by the Treaty of Madrid in 1670. The legisla-
tive power is vested in a Governor and Legislative Council.
The Turk's and Caicos Islands are annexed to Jamaica.

By the Judicial Law No. 24, 1879, s. 20, the powers of The Supreme
the Supreme Court are those hitherto vested in the Supreme Court-
Court of Judicature, the High Court of Chancery, the
Incumbered Estates Court, the Court of the Ordinary,
the Court of Divorce and Matrimonial Causes, the
Chief Court in Bankruptcy, and the Circuit Courts. An
appeal lies to the Full Court from judgments of a single
judge. Appeals lie from district courts to the Full Court,
whose decisions are final (ss. 27 — 32). The Supreme Court Colonial
of Jamaica is a Colonial Court of Admiralty, under the
Colonial Courts of Admiralty Act, 1890.

Provision for the regulation of appeals from the Supreme Appeal.
Court to the Privy Council is made by an Order in Council
of February 18, 1909, which revokes the Order of 1881,

p.c. 8

114

THE PRACTICE OF THE PRIVY COUNCIL.

Misde-
meanour.

The constitu-
tion of the
colony.

Supreme
Court.

Appeals.

and fixes the appealable amount at 300?. and the limit of
time for leave to appeal at twenty-one days (r).

The Royal Instructions to the Governor of 1710 provided
that there should be an appeal to the Privy Council in all
cases of fines for misdemeanour which were of the amount
of 200/. or upwards.

It was questioned in In re Levien (1855), 10 Moo., p. 35>
whether the right to appeal in misdemeanour cases still
remains ; but the point was not decided, as pending this
appeal the prisoner was pardoned.

LEEWARD ISLANDS.

These islands, consisting of the Presidencies of Antigua
(with its dependencies Barbuda and Redonda), Montserrat,
Saint Kitts and Nevis (with their dependencies Anguila and
Dominica), and the Virgin Islands, were created, in 1871, a
Federal Colony by the Imperial Statute 34 & 35 Viet. c.
107, with power to legislate as to the constitution and
jurisdiction of all courts of law, civil and criminal, and
their jurisdiction, procedure and practice.

By Act No. 23 of 1873 the Supreme Court of the
Leeward Islands was constituted, and by sect. 2 the old
courts of the islands were abolished.

By the Supreme Court Act No. 2 of 1880, the Legisla-
ture of the Federal Colony of the Leeward Islands amended
the various acts as to the Supreme Court, which is declared
to consist of the Chief Justice and two puisne judges.
There is an appeal to the full court.

Appeals to the Privy Council are now regulated by a local
Act of 1909 (No. 13), the Privy Council Appeal Act,
which provides that the appealable amount shall be 500?., and
the time within which leave to appeal is to be asked is
twenty-one days. Pending appeals are to be conducted
according to the provisions of the Act. An Order in Council
of June 28, 1909, revokes the former Order in Council of
1880, which regulated appeals from the Supreme Court.
The Act embodies the Colonial Appeal Rules.

TRINIDAD (and Tobago).

Trinidad was ceded to England by the Treaty of Amiens,
1802. It was united with Tobago as one colony as from
(r) The Order embodies the Colonial Appeal Rules.

RULES OF APPEAL FOR THE COLONIES, ETC. 115

1889. By Order in Council of June 20, 1831, provision

was made for the administration of justice. By the Supreme

Supreme Court Ordinance No. 28 of 1879 the Supreme

Court of Trinidad was constituted with the jurisdictio n of

the High Court of Justice in England, except Admiralty,

Divorce and Matrimonial jurisdiction.

By the Judicature (Tobago) Ordinance No. 34 of 1898, Tobago,
provision is made for the exercise of the jurisdiction of the
Supreme Court in respect of matters arising in Tobago-
The old right of appeal direct from the island to the Privy
Council no longer exists.

An Order in Council of April 2, 1909, now regulates Appeals,
appeals from the Supreme Court to the Privy Council, and
revokes the former Order of 1831 so far as it related to the
islands. The appealable amount is 500Z., and the limit of
time for asking leave to appeal is twenty-one days (s). By a Appeal
Proclamation of 1813, the Governor is directed to admit
appeal to the Sovereign in Council " in all cases of fines
imposed for misdemeanours, provided that the fines so
imposed amount to or exceed the sum of 100?.
sterling ; the appellant first giving security that he will
effectually prosecute the same and answer the condemnation
of the sentence by which such fine was imposed in the said
island if it shall be confirmed." This right has not ex-
pressly been taken away.

THE WINDWARD ISLANDS.

The Windward Caribbee Islands, or southern group of The Wind-
the West Indian Islands, so called in contradistinction to ward Islands
the Leeward Islands, consist now of the colonies of Grenada
and the Grenadines, St. Vincent and St. Lucia, grouped
together under one Governor for administrative purposes.
There is, however, no federal colony, as in the case of the NO federal
Leeward Islands. Each colony has its separate legislature C(>lony-
and its laws.

In virtue of an Imperial Statute (13 & 14 Viet. c. 15), Courts.
and after legislation by the colonies concerned, a Court
of Appeal for the Windward Islands was established by
Order in Council of March 3, 1859, and the Act has been
amended by the Windward Islands Appeal Court Act, 1889,
(s) See n. (r), aupra.

8—2

116

THE PRACTICE OF THE PRIVY COUNCIL.

and an Order in Council of February, 1901, which restricts
the jurisdiction of the court to the islands of Barbados,
Grenada, St. Vincent, and St. Lucia. There exists, how-
ever, a right of appeal to His Majesty in Council, not only
from the judgment of the Court of Appeal, but also from the
Supreme Court of each island.

Powers of In an appeal from a judgment of the Court of Appeal the

Chief Justice. functions conferred on the Court may be exercised by the Chief

Justice of each island, when the Court of Appeal is not sitting

there. The Order in each case adopts the Colonial Appeal

Rules.

Islands ceded
1763.

Courts.

Appeals.

Courts.

GRENADA (and the Grenadines).

The islands of Grenada and the Grenadines were ceded
by France by the Treaty of Paris.

Power to constitute Courts of Judicature and Public
Justice was given by Letters Patent in 1703 "for the
hearing and determining all causes, as well criminal as civil,
according to law and equity, with liberty to all persons who
may think themselves aggrieved by the sentences of such
courts, in all civil cases, to appeal under the usual limita-
tions and restrictions to us in our Privy Council."

By Ordinance 21 of 1896 the Supreme Court of Judica-
ture was continued with the jurisdiction vested in the
High Court of Justice except in its constitutional jurisdic-
tion.

An Order in Council of June 28, 1909, revoking the
provisions as to appeals contained in the Order in Council
of 1859, provides that there shall be an appeal as of right
from a final judgment either from the Supreme Court of
Judicature or the Court of Appeal for the Windward
Islands sitting in Grenada when the amount of the subject-
matter is 300/. or over. The limit of time for asking leave
to appeal is twenty-one days.

ST. LUCIA.

St. Lucia was ultimately surrendered by France to
England at the beginning of the nineteenth century.

The chief court of the colony is the Royal Court.

An Order in Council of November 22, 1909, revoking
former Orders in Council of 1831 and 1889, which regulate

RULES OF APPEAL FOR THE COLONIES ETC. 117

appeals from the Royal Court and the Appeal Court of the
Windward Islands respectively, regulates appeals from both
courts to the Privy Council on the same terms as are pre-
scribed for ( J renada.

Appeals lie from the district court in the colony to the
Royal Court, and judgments given on appeal by the Royal
Court are declared to be without appeal (sect. 909, Code of
Civil Procedure).

ST. VINCENT.

The island was ceded to Great Britain by the Treaty of
Paris in 1703, and again assured by the Treaty of Versailles
in 1783. The Supreme Court of the colony possesses the The Supreme
jurisdiction formerly vested in the Supreme Court of Court
Judicature and the Court of Chancery.

An Order in Council of June 28, 1909, regulates appeals Appeals,
from the Supreme Court of the island and the Appeal
Court of the Windward Islands to the Privy Council on the
same terms as are prescribed for the other Windward Islands.

Leave to appeal may be given direct to the Privy Council
from the Supreme Court.

Where a judgment suspending a barrister from practice
had a final effect, and it was urgently desirable that delay
should be prevented, leave to appeal was successfully
invoked without going first to the Court of Appeal of the
Windward Islands. McLeod v. St. Aubyn (St. Vincent,
1899), A. C. 549.

V. FOREIGN JURISDICTION.
A. IN AFRICA.

It has been pointed out that the King in Council, in
addition to his right to hear appeals from any courts in
British possessions, may also entertain appeals from
British courts set up in territories which are not British
possessions by virtue of the power of foreign jurisdiction.
By the Foreign Jurisdiction Acts, 1843 — 1878, the King
obtained the right of establishing courts in various
protectorates and foreign countries which do not possess a
Christian or fully civilised government, and these powers
were consolidated in the Foreign Jurisdiction Act of 1890.

118

THE PRACTICE OF THE PRIVY COUNCIL.

The foreign jurisdiction of the Crown is chiefly exercised in
Asia and Africa. Following on the great partition of spheres
of influence in Africa, an Order in Council was issued in
1889, dealing generally with British jurisdiction in African
protectorates, and known as the Africa Order in Council,
1889. It provided for the institution of local jurisdictions
on the Continent of Africa and the adjacent islands, and for
the regulation of appeals from these courts by the Secretary
of State's instructions. It originally applied to the
protectorates of Northern and Southern Nigeria (then
known as the Oil Rivers), of East Africa and Uganda, and
of Barotziland and British Central Africa. By various
Orders in Council these territories have been taken out of the
general order and new dispositions as regards courts and
appeals to the Privy Council have been made. The order
applied also to Madagascar and the Congo Free State. But
as the one has become a French and the other a Belgian
colony, the exterritorial jurisdiction of the English Crown
has ceased in these territories. The provisions as to Courts
of Appeal made under the order have therefore no applica-
tion, and appeals to the Privy Council from the protectorates
and foreign jurisdictions are now regulated as follows :

Establish-
ment of
protectorate.

Courts and
regulations
for appeal.

NORTHERN NIGERIA.

By the Order in Council dated December 27, 1899, the
protectorates of Northern and Southern Nigeria are con-
stituted. The protectorate of Northern Nigeria covers the
area of the old Niger Company's territories, which is not
included in Southern Nigeria. The whole of the territories
had originally formed one protectorate.

The protectorate of Southern Nigeria, as has been stated,
has been brought within the rules as to appeal from the
Supreme Court of the colony of Lagos or Southern Nigeria.
By a Proclamation of 1902 a Supreme Court has been
constituted for the Protectorate of Northern Nigeria, and
provisions for appeal from this court in common form have
been made by an Order in Council of May 17, 1909. The
appealable amount is 500?., and the limit of time for asking
leave to appeal is twenty-one days.

RULES OF APPEAL FOR THE COLONIES, ETC. 119

EAST AFRICA, UGANDA, AND NYASSA-
LAND PROTECTORATES.

A Royal Charter, dated September 3, 1888, recognised the
sovereign powers of the Imperial British East Africa
Company, and authorised the company to extend those
powers in East Africa within British influence. The
company, in 1892, by treaty undertook to protect the
kingdom of Uganda. In 1894 Uganda was declared by
notification to be a British protectorate.

The protectorate over Nyassaland was notified May 14, Protectorates.
1891, and named the "British Central African Pro-
tectorate," May 22, 1893.

By an Order in Council of February 15, 1909, a Court of Appeal Court.
Appeal was constituted for Eastern Africa which is to
exercise such appellate jurisdiction and such other powers in
relation to the High Courts and other courts in the said
protectorates as may be conferred by ordinances passed
under the provisions of Orders in Council referring to the
protectorates. The order repeals two former Orders in
Council of 1902 and 1906.

By another order of even date (February 15, 1909) Appeals to
provision is made in common form (see Ch. II.) for the the p< Cl
regulation of appeals from the Court of Appeal to His
Majesty in Council.

An appeal lies of right when the matter in dispute is of
the value of 650/. or upwards, or when the appeal involves a
claim or question respecting property or some civil right of
the value of Rs. 10,000 or upwards; the limit of time for
asking leave to appeal is twenty-one days in the case of
applications from East Africa and Uganda, and three months
in the case of applications from Nyassaland, and the security
for costs shall not exceed Rs. 5,000.

NORTHERN RHODESIA.

By an Order in Council of May 4, 1911, made under the
Foreign Jurisdiction Act, 1890, provision is made for the
administration of justice over a territory known as Northern
Rhodesia, and former orders relating to Barotziland, or
North- Western Rhodesia, and North-Eastern Rhodesia of

120

THE PRACTICE OF THE PRIVY COUNCIL.

Appeal.

Origin of
jurisdiction.

Court.

Appeals.

1899, 1902 and 1909, and 1900, 1907 and 1909 respectively
are revoked.

By sect. 21 of the Order a Court of Record, styled the
High Court of Northern Rhodesia, is constituted with full
jurisdiction, civil and criminal.

By sect. 28 in civil matters where the amount or value in
dispute exceeds 500?. an appeal lies to His Majesty in
Council. The appeal is to be brought within the time and
in the manner prescribed by any rules of procedure made by
Order in Council. Rules have not yet been made.

NORTH-WESTERN RHODESIA.

There is nothing in the order repugnant to the provisions
of the Order in Council of October 13, 1910, which
provides for appeals from the Administrator's Court of
Barotziland and the High Court of North- Western Rhodesia.
By its provisions an appeal shall lie as of right (a) from any
final judgment of the Administrator's Court or of the High
Court when the matter in dispute is of the value of 500Z. or
upwards, etc., and from any judgment under the laws relating
to divorce and matrimonial causes when such judgment is not
interlocutory, but is upon the grant or refusal of a decree nisi
on petition for dissolution or nullity of marriage ; (b) at the
discretion of the court from any other judgment of either
tribunal. The limit of time for applying for leave to appeal
is forty-two days.

SOMALI COAST PROTECTORATE.

A protectorate was declared over Somaliland by Order in
Council, 1889, and provision for jurisdiction is made by the
Somaliland Order in Council, October 7, 1899, which was
issued under the powers of the Foreign Jurisdiction Act,
1 890. Article 20 creates the Protectorate Court with criminal
jurisdiction, and all the powers of a Sessions Court in India,
and with the same appellate jurisdiction as a High Court in
India. But by an Order in Council of February 15, 1909,
the rules of the Indian Code of Civil Procedure were
abrogated for the Somaliland Protectorate, and new rules of
appeal to the Privy Council in the form of the Colonial
Rules of Appeal were made for the Somaliland Court.

RULES OF APPEAL FOR THE COLONIES, ETC. 121

The appealable amount is 500/. Leave to appeal must
be asked in twenty-one days.

ZANZIBAR.

A protectorate was established over the dominions of the Origin of
Sultan of Zanzibar in 1890, and jurisdiction under the !«&&<&*•
Foreign Jurisdiction Act, 1890, is now exercised under the
terms of the Order in Council of 1906. Sect. 4 establishes Courts,
his Britannic Majesty's Court for Zanzibar, with criminal
and civil jurisdiction. The Secretary of State may appoint
subordinate courts in Zanzibar.

The order extends to British subjects, including natives
and protected persons, and to foreigners with respect to whom
the government whose subjects they are has agreed to the
exercise of power and authority of His Majesty, including
subjects of the Sultan of Zanzibar, who are plaintiffs.

The court for Zanzibar is treated as if it were a district
court of the Presidency of Bombay (sects. 14, 29). The
Indian Code of Civil Procedure is to apply as if Zanzibar
were a district in the Presidency. There is an appeal in civil
matters to the High Court of Bombay as the highest Civil
Court of Appeal for the district.

The appeal from the High Court to the Privy Council is Appeals,
regulated by the Indian Code of Civil Procedure. (See infra,
BRITISH INDIA.) The Order in Council of November 7,
1910, confers Admiralty jurisdiction on the Zanzibar Court,
and Admiralty appeals to the Privy Council are regulated
by sect. 6 of the Colonial Courts of Admiralty Act, 1890.

MOROCCO.

The rights of protection in Morocco originally were
settled between the various countries of Europe by the
Madrid Convention, signed July 3, 1880 ; but the country
has now become a French colony and the foreign jurisdiction
is thereby abolished.

The exercise of His Majesty's power and jurisdiction
within the dominions of His Majesty the Sultan of Morocco
and Fez was hitherto regulated by the Morocco Order in Morocco
Council, 1889, by which His Britannic Majesty's Consular 0. in C. 1889.
Court for Morocco is established.

122

Appeals

Origin of
jurisdiction.

Appeals.

Exclusion
of Corea
from Order.

Admiralty
jurisdiction.

THE PRACTICE OF THE PRIVY COUNCIL.

An appeal from the court for Morocco in civil cases is given
to the Supreme Court of Gibraltar (Art. 92), and Art. 105
provides : For purposes of appeal to the King in Council,
a decision of the Supreme Court on appeal has the effect of
a decision in its primary jurisdiction, i.e., an appeal lies from
the Gibraltar court in respect of its appellate jurisdiction on
the same conditions as in respect of its primary jurisdiction.

The appeal also lay from the decision of the Consul-
General, acting as a Court of Appeal, by special leave of the
Privy Council.

B. FOREIGN JURISDICTION IN ASIA AND EUROPE.
CHINA.

Since 1833 the British Sovereign has exercised foreign
jurisdiction in China. An Order in Council of 1865, which
applied also to Japan, regulates the jurisdiction of His
Majesty in the far east, and provides for the establishment
of Consular Courts. By Order in Council, 1899, the opera-
tion of the order as regards Japan was terminated. By the
Order of 1865 a Supreme Court for China was established,
to sit usually at Shanghai, but elsewhere if duly approved.

Appeals from the Supreme Court to the Privy Council
are now regulated by the China Order in Council, 1904
(Stat. R. and 0. 193). The appealable amount is 500Z. ; and
leave to appeal must be asked within fifteen days from the
date of the judgment ; and the appellant must give security
not exceeding 500/. within one month of filing the
notice of appeal. The appeal in criminal cases lies only by
special leave of the Privy Council. By an Order in
Council of January 23, 1911, the provisions of the China
Orders in Council no longer apply to Corea, except as regards
judicial matters pending in any of the courts in Corea
at the date of the commencement of the Order.

By an Order in Council of November 7, 1910, the Supreme
Court in China has Admiralty jurisdiction, and £he Colonial
Courts of Admiralty Act, 1890, s. 6, applies to appeals to
His Majesty in Council.

FEDERATED MALAY STATES.

By the agreement entered into in July, 1895, between
Her Majesty's Government and the rulers of the following

RULES OF APPEAL FOR THE COLONIES, ETC. 123

Malay States, Perak, Selangor, Pahang, and Negri Sembilan,
the chiefs placed themselves and their states under British
protection, and agreed to constitute their countries a
federation to be known as the Protected Malay States, to
be administered under the advice of the British Government.

By an Order in Council of 1906 (R. and 0. 945), His Courts.
Majesty's jurisdiction was regulated, an Appeal Court was
established, and provisions for appeals from the Appeal
Court to the Privy Council were made.

The appealable amount is 500/., but the court may give Appeals.
leave to appeal in any case where it thinks fit. Leave to
appeal must be asked for within fifteen days of the date
of the judgment, unless some other time is prescribed by
the court. The appellant must give security within two
months from filing the motion for leave to appeal.

MUSCAT.

His Majesty's consular jurisdiction in the dominions of 0. in C., 1867.
the Sultan of Muscat is exercised under the Muscat Order
in Council, November 4, 1867, made under the Foreign
Jurisdiction Act, 1843. The consul is sole judge and Consular
arbiter in all suits, disputes, differences and causes of JudSe-
litigation of a civil nature. There is an appeal to the Appeal to
High Court of Bombay where the value of the matter f

at issue is §200 (sect. 6). The High Court has also
concurrent jurisdiction. The Order in Council is silent as Appeal.
to the appeal to the King from the High Court of Bombay.
Under these circumstances special leave should be asked.

PERSIA.

The Order in Council providing for the exercise of His Origin of
Majesty's jurisdiction in Persia is dated December 13, 1889. 3urisdictien-
The term Persia (except as in the Order expressly provided)
does not include or apply to any place for the time being
included within the limits to which any other Order in
Council for the time being in force relating to the Persian
coasts and islands applies. By sect. 10 courts of first Courts.
instance, called provincial courts, are to be held by the
Vice-Consul or Consul-General, and the court of the Consul-
General is to hear appeals from the provincial court.

124 THE PRACTICE OF THE PRIVY COUNCIL.

Appeals. An appeal is given to the Privy Council in a civil suit

from a final judgment of the Consul-General where the
subject-matter is of the value of 500/. The party aggrieved
must apply within fifteen days to the Consul-General for
leave to appeal (sect. 230).

Security to an amount not exceeding 500Z. must be given
within a month from the filing of the motion proper for
leave to appeal.

The Consul-General may give leave to appeal in any other
case where he sees fit to do so.

PERSIAN COAST AND ISLANDS.

The portion of the coasts and islands of the Persian Gulf
and Gulf of Oman, which is within the dominions of the
Shah of Persia, is excepted from the Persian Order in
Council, and English jurisdiction in this area is now
regulated by the Persian Coasts and Islands Order in Council,
Appeals. 1907. Appeals from the highest courts lie in the first place

to the High Court of Bombay and thence to the Privy
Council in accordance with the terms of the Indian Code
of Civil Procedure. See BRITISH INDIA, infra.

By the Order in Council of November 7, 1910, Admiralty
jurisdiction is conferred on the court of the Consul-General
for Faro and the coasts and islands of the Persian Gulf,
whether held by the Consul-General or the Judicial
Assistant, and Admiralty appeals from the court to His
Majesty in Council are regulated by sect. 6 of the Colonial
Courts of Admiralty Act, 1890. Article 29 of the Order
of 1907 is repealed.

SARAWAK.

An agreement was made in 1888 between Lord Salisbury
and Rajah Brooke for placing Sarawak under the protection
of Great Britain. " Such protection shall confer no right "
on His Majesty's Government " to interfere with the
internal administration of the state " further than provided
in the agreement. His Majesty is to have the right to
establish British consular officers in any part of the state
who shall receive exequaturs in the name of the Govern-
ment of Sarawak. The agreement with the ruler of Sarawak

RULES OF APPEAL FOR THE COLONIES, ETC. 125

was made by the light of the British Settlements Act, 1887,
which had been passed in the previous year, but it is
probable that the jurisdiction is administered only by virtue
of the Foreign Jurisdiction Act, 1890.

No Order in Council or other rules have been issued with
reference to judicial proceedings. In the event of any
grievance in the nature of an appeal from a decision of
His Majesty's Consul in Sarawak, the right course would
seem to be to present a petition to the King through the
Secretary of State, who will refer the same for hearing to
the Privy Council.

SIAM.

The jurisdiction possessed by His Majesty in Siam is origin of
based upon the Treaty of April 18, 1855, and a supple- jurisdiction,
mentary agreement of May 13, 1856. These powers are
now exercised under Orders in Council, 1889 and 1906.
His Majesty's Britannic Court for Siam is established by
the Order of 1906, and provision made for its jurisdiction.

By the Order in Council of 1906 (sect. 104) an appeal Appeals,
now lies from the Full Court of Siam to His Majesty in
Council. The appealable amount is 500/., and leave to
appeal must be asked within fifteen days, unless the court
prescribes a different term ; and security is to be given by
the appellant within two months from the filing of the
motion proper for leave to appeal.

By the Order in Council of November 7, 1910, the court Admiralty
for Siam has Admiralty jurisdiction, and Admiralty appeals iurisdicfci°n.
to the Privy Council are regulated by sect. 6 of the Colonial
Courts of Admiralty Act, 1890. The Order only operates
in Siam to the extent of and in the cases where the pro-
visions of the principal Order (of 1906) are in operation.

Xo appeal lies from a judgment of the Full Court to His Criminal
Majesty in Council in a criminal case save by special leave aPPea •
of His Majesty in Council.

CYPRUS.

On June 4, 1878, the island of Cyprus was assigned to Origin of

;t Britain to be occupied and administered by England. Junsdlctlon-
Cyprus is to be restored to Turkey when Russia restores
Kars. An Order in Council (under the Foreign Jurisdiction Cyprus Order

1878.

126

THE PRACTICE OF THE PRIVY COUNCIL.

Regulations
for appeal,

Translation.

The S. C. is
a Colonial
Court of
Admiralty.

Origin of
jurisdiction.

Acts, 1843 to 1878) dated September 14, 1878, made
provision for the exercise of His Majesty's power and juris-
diction in and over the island. By Art. 27, the Ottoman
Order in Council, 1873, is repealed as to Cyprus. By
Ordinance No. 1 of 1878, a Court of Record, called the
King's High Court of Justice for Cyprus, was created, but
by Order in Council of 1882 (which is amended by an Order
of June 11, 1910), the Supreme Court of Cyprus is estab-
lished, to which all the jurisdiction of the High Court is
transferred.

Regulations for appeal from the Supreme Court to the
Privy Council were made by Art. 41 of the Order of 1882 ;
but this article is revoked and new regulations for appeal
are made by an Order in Council of August 10, 1909, by
which an appeal of right is provided from any final judgment
of the Supreme Court when the subject-matter of the
appeal is 300Z. or upwards, and at the discretion of the
court in all other cases. Application for leave to appeal
must be made within thirty days, and it is provided in rule 7.
There shall be included in the record a translation into the
English language and certified by the registrar or assistant-
registrar of the court to be a true and correct translation
of all such portions of the record as are in the Turkish or
Greek language. The other rules are in common form.

An Order in Council of November 23, 1893, gives the
Supreme Court Admiralty jurisdiction, and applies the
Colonial Courts of Admiralty Act to the Supreme Court.

Rules of court for the exercise of Admiralty jurisdiction
were appended, but by Order in Council, dated May 31, 1910,
these rules have been revoked, and fresh rules have been
made. See p. 371.

THE OTTOMAN EMPIRE.

The King has jurisdiction in the dominions of the
Sublime Ottoman Porte by virtue of very ancient capitula-
tions, which are still in force and which were confirmed by
the treaty of peace concluded at the Dardanelles in 1809.
The privileges granted by the capitulations and articles of
peace are very wide, and apply not only to English subjects,
but in certain instances to all merchants navigating under
the English flag. This jurisdiction has been exercised by

RULES OF APPEAL FOR THE COLONIES, ETC. 127

the Crown since the abolition of the Levant Company in Levant
1825 by the 6 Geo. 4, c. 33. Company,

The various Foreign Jurisdiction Acts which date from
1848 confer powers on His Majesty to exercise jurisdiction
under the capitulations.

In pursuance of these powers various Orders in Council The Ottoman
were approved by Her late Majesty regulating Her Majesty's °* m c*
jurisdiction in the Ottoman Empire. The Order in Council
now in force is dated November 7, 1910, and is made by
virtue of the Foreign Jurisdiction Act, 1890.

The limits of the Order are the dominions of the Sublime Egypt.
Ottoman Porte, including Egypt as far as the 22nd parallel
of north latitude.

The order defines " British subject " as including a

British protected person. And the jurisdiction extends over :

(i.) British subjects, as herein defined, within the limits

of this Order.

(ii.) The property and all personal or proprietary rights
and liabilities within the said limits of British
subjects, whether such subjects are within the said
limits or not.

(iii.) Ottoman subjects and foreigners in the cases and
according to the conditions specified in this Order,
and not otherwise.

(iv.) Foreigners with respect to whom any state, King,
chief, or government, whose subjects or under
whose protection they are, has by any treaty as
herein defined or otherwise agreed with His Majesty
for, or consents to, the exercise of power or authority
by His Majesty.

(v.) British ships with their boats, and the persons and
property on board thereof, or belonging thereto,
being within the Ottoman dominions.

The Order establishes a court styled "His Britannic Supreme
Majesty's Supreme Consular Court for the dominions of the Court-
Sublime Ottoman Porte." This court sits usually at
Constantinople, if required at Alexandria, and on emergency
at any other place within the Ottoman dominions (Art. 14).
Two judges of the Supreme Court are to be appointed by
His Majesty by warrant under his royal sign manual, and
the Secretary of State may appoint a special judge

128

THE PRACTICE OF THE PRIVY COUNCIL.

Appeal to

Supreme

Court.

Appeal to the
Sovereign.

Security to
prosecute.

Expense of
record.

When leave
to be given.

Special leave.

Suspending
execution.

temporarily. Art. 17 provides for provincial courts, which
are Courts of Record, and Art. 19 for local courts.

An appeal lies to the Supreme Court from the provincial
courts in respect of a matter of 50/. or upwards. An
appeal in civil matters is given from the Supreme Court to
His Majesty in Council by Art. 122 in the following
terms :

(1) Where a final judgment or order of the Supreme
Court made in a civil action involves the amount or value
of 500?. or upwards, any party aggrieved thereby may,
within the prescribed time, or if no time is prescribed
within fifteen days after the same is made or given, apply
by motion to the Supreme Court for leave to appeal to His
Majesty the King in Council.

(2) The applicant shall give security to the satisfaction
of the court to an amount not exceeding 500/. for the
prosecution of the appeal, and for payment of all such costs
as may be awarded to any respondent by His Majesty in
Council, or by the lords of the Judicial Committee of His
Majesty's Privy Council.

(3) He shall also pay into the Supreme Court a sum
estimated by that court to be the amount of the expense of
the making up and transmission to England of the transcript
of the record.

(4) If security and payment are so given and made
within one month from the filing of the motion paper for
leave to appeal, then, and not otherwise, the Supreme Court
shall give leave to appeal, and the appellant shall be at
liberty to prefer and prosecute his appeal to His Majesty in
Council according to the rules for the time being in force
respecting appeals to His Majesty in Council from his
colonies, or such other rules as His Majesty in Council from
time to time thinks fit to make concerning appeals from the
Supreme Court.

(5) In any case the Supreme Court, if it considers it just
or expedient to do so, may give leave to appeal on the terms
and in the manner aforesaid.

125. — (1.) Where leave to appeal to His Majesty in
Council is applied for by a person ordered to pay money, or
do any other act, the Supreme Court shall direct either that
the order appealed from be carried into execution, or that

RULES OF APPEAL FOR THE COLONIES, ETC. 129

the execution thereof be suspended pending the appeal, as
the court thinks just.

(2) If the court directs the order to be carried into Security,
execution, the person in whose favour it is made shall, before

the execution of it, give security to the satisfaction of the
court for performance of such order as His Majesty in
Council may think fit to make.

(3) If the court directs the execution of the order to be
suspended, the party against whom it is given shall, before
an order for suspension is made, give security to the satis-
faction of the court for performance of such order as His
Majesty in Council may think fit to make.

12(1. This order shall not affect the right of His Majesty Prerogative,
at any time, on the humble petition of a person aggrieved at
the decision of the Supreme Court, to admit his appeal on
such terms as His Majesty thinks fit, and to deal with the
decision appealed from in such manner as may seem just.

Article 88 provides that there shall be no criminal appeal Criminal
except by special leave of His Majesty in Council. Appeal.

The Foreign Jurisdiction (Admiralty) Order in Council of Admiralty
November 7, 1911, extends to all persons and to all property Jurisdiction,
subject to the Ottoman Order in Council, 1910, and confers
Admiralty jurisdiction on the Supreme Court, and, during the
absence from Egypt of a judge of the Supreme Court, and
subject to any rules of court, on the Provincial Court at
Alexandria. Sect. 6 of the Colonial Courts of Admiralty
Act, 1890, applies to appeals to the Privy Council.

FOREIGN JURISDICTION.
C. PACIFIC ISLANDS (POLYNESIA).

The foreign jurisdiction over the Pacific Islands was The Pacific
originally established by the Pacific Islanders Protection ^anO.inC.,
Act, 1875. The jurisdiction as now regulated by the Pacific
Ocean Order in Council, 1893, made by virtue and in exercise
of the power vested in Her Majesty by the British Settle-
ments Act, 1887, the Pacific Islanders Protection Act, and
the Foreign Jurisdiction Act, 1890.

The High Court, which was created by an Order of 1877, Courts,
is continued (sect. 12). The Supreme Court of Fiji is the
Court of Appeal. The High Court is a Colonial Court of
Admiralty.

p.c. 9

180

Appeals.

New
Hebrides.

THE PRACTICE OF THE PRIVY COUNCIL.

Its decisions on appeal are subject to appeal to His
Majesty in Council in the same manner and on the same
conditions as any other decision of the court, so that an
appeal lies from the Fiji Court on the terms set out above.
(See Fiji, p. 82.)

By a convention made in 1906 between England and
France, the New Hebrides are placed under the dual control
of High Commissioners appointed by the two Governments,
and a joint court is established composed of their judges.
The judgments of this court are declared to be final
(Art. 15), and would therefore not be subject to review by the
Privy Council ; but by sect. 9 of the New Hebrides Order in
Council, 1907, the Pacific Isles Order in Council still applies
subject to the provisions of the Convention, and is binding
on all persons over whom His Majesty has jurisdiction.

Extent and
origin of the
Settlements.

Courts.

Appeals.

VI. THE STRAITS SETTLEMENTS.

Special rules regulate the practice in appeals from the
Straits Settlements to the Privy Council, and these are there-
fore set out in full.

The English Settlements in the Malay Peninsula, Singa-
pore, Penang and Malacca, with their dependencies, which
were formerly part of the Indian dominions, were constituted
a separate colony by the Imperial Statutes of 1866 (29 & 30
Viet. c. 115) ; by Orders in Council of 1886 and 1888 the
Cocos Islands have been transferred to the colony ; and by
Letters Patent, dated October 30, 1906, the boundaries of
the colony have been extended so as to include Labuan, an
island which was ceded to England in 1846.

A Recorder's Court was established in Penang in 1807, and
a Court of Judicature in the other settlements in 1855.
By Ordinance No. 5 of 1868, the Court of Judicature was
abolished and the Supreme Court of the Straits Settlements
was established ; and in 1893 an Appeal Court for the colony
was created.

Appeals now lie to the Privy Council from the Court of
Appeal, and the procedure is very fully regulated by the
rules in the Code of Civil Procedure (Act 31 of 1907,
of which c. 53 deals with appeals to the King in Council).
The Code has been amended by Act 12 of 1909, of which

RULES OF APPEAL FOR THE COLONIES, ETC. 131

sects. 57 — 59 embody a number of further rules for appeals
to the Privy Council which are taken from the Judicial
Committee Rules issued in 1908.

The rules of the Code are as follow : —

1154. Subject to such rules as may from time to time be When appeals
made by His Majesty in Council regarding appeals from J^°]Je
Colonial courts, and to the provisions hereinafter contained, Council.
an appeal shah1 lie from the Court of Appeal to His Majesty
in Council :

(a) From any final judgment or order ;

(b) From any interlocutory judgment or order which is

certified as hereinafter provided to be a fit one for
appeal to His Majesty in Council ; or

(c) Where the case is from its nature a fit one for appeal.
Provided always, that in the case mentioned in clause (a) Appealable

the amount or value of the subject-matter of the suit must value-
be 2,500 dollars or upwards, and the amount or value of
the matter in dispute on appeal to His Majesty in
Council must be the same sum or upwards or the judgment
or order must involve, directly or indirectly, some
claim or question to or respecting property of like amount
or value.

1155. — (1) Whoever desires to appeal under this part to Application
His Majesty in Council must apply by petition to the Court *or ^ve 1
of Appeal within six months from the date on which the
decision appealed against was given or within such further
time not exceeding twelve months from such date as may be
allowed by the Court of Appeal.

(2) Such petition must contain :

(a) A concise statement of the material facts of the case ;

(b) The order of the Court of First Instance ;

(d) The grounds of the proposed appeal.

It must also pray for a certificate either that as regards
amount or value or nature the case fulfils the requirements
of sect. 1154, or that it is otherwise a fit one for appeal to
His Majesty in Council.

(3) Upon receipt of such petition, the Court of Appeal
may, if it thinks fit, direct notice to be served on the opposite
party to show cause why the said certificate should not be
granted.

9—2

182

THE PRACTICE OF THE PRIVY COUNCIL.

Certificate of
fitness.

Dismissal of
petition.

Procedure
after grant of
certificate.

Admission of
appeal and
procedure
thereon.

If the Court of Appeal is not sitting the petition may be
dealt with by the Supreme Court in any Settlement. But
the certificate that the interlocutory order is a fit one for
appeal referred to in clause (b) of sect. 1154 of the principal
Ordinance may be granted by the Court of Appeal only.

1157. If the certificate be refused, the petition shall be
dismissed.

1158. If the certificate be granted the applicant shall,
within six months from the date of the judgment or order
complained of, or within six weeks from the grant of the
certificate, whichever is the later date, or within such further
time as may be allowed by the Court of Appeal :

(a) Give security for the costs of the respondent to an

amount not exceeding two thousand dollars ;

(b) Deposit the amount required to defray the expense

of translating, transcribing, indexing, and trans-
mitting to His Majesty in Council a correct copy
of the whole of the proceedings in the suit, except :

(i.) Formal documents directed to be excluded by
any Order of His Majesty in Council for the time
being in force ;

(ii.) Papers which the parties agree to exclude ;

(iii.) Accounts or portions of accounts which the
registrar considers unnecessary and which the
parties have not specifically asked to be included ; and

(iv.) Such other documents as the Supreme Court
may direct to be excluded.

1159. — (1) When such security has been completed and
deposit made to the satisfaction of the Supreme Court, the
Court may :

(a) Declare the appeal admitted ; and

(b) Give notice thereof to the respondent ; and shall then

of the court a correct copy of the said record except
as aforesaid ; and

(d) Give to either party one or more authenticated copies-

of any of the papers in the cause on his applying
therefor and paying reasonable expenses incurred in
preparing them.

Then follow some sub -sections which incorporate the
Colonial Rules of Appeal as to the consolidation of petitions,

RULES OF APPEAL FOR THE COLONIES, ETC. 133

the withdrawal of appeals, the dismissal for non-prosecution
of appeal, the record becoming defective by reason of the
death of a party, etc.

These rules are set out at pp. 28—32.

1160. At any time before the admission of the appeal, the Revocation

Supreme Court may, upon cause shown, revoke the accept- °J acceptance

•I » -.-_., -,. of security,

ance of such security and give further directions thereon.

1161. — (1) If at any time after the admission of the Power to
appeal, but before the transmission of the copy of the pro-
ceediugs except as aforesaid to His Majesty in Council, such
security appears inadequate or further payment is required
for the purpose of translating, transcribing, indexing or
transmitting the copy of the record except as aforesaid, the
Supreme Court may order the appellant to furnish within a
time to be fixed by the court, other and sufficient security
or to make within like time the required payment.

(2) If the appellant fails to comply with such order the
proceedings shall be stayed and the appeal shall not proceed
without an order in that behalf of His Majesty in Council,
and in the meantime execution of the judgment or order
appealed against shall not be stayed.

1162. — (1) Notwithstanding the admission of any appeal Power of
under this part, the judgment or order appealed against court^nd
shall be unconditionally enforced unless the Supreme Court ing appeal,
otherwise directs.

(2) The Supreme Court may, if it thinks fit, on any special
cause shown by any party interested in the suit or otherwise
appearing to the court :

(a) Impound any immoveable property in dispute or any

part thereof ; or

(b) Allow the judgment or order appealed against to be

enforced, taking such security from the respondents
as the court thinks fit for the due performance of
any order which His Majesty in Council may make
on the appeal ; or

appealed against taking such security from the
appellant as the court thinks fit for the due per-
formance of the judgment or order appealed against,
or of any order which His Majesty in Council may
make on the appeal ; or

134

THE PEACTICE OF THE PRIVY COUNCIL.

Increase of

Preparing
record.

(d) Place any party seeking the assistance of the court
under conditions, or give such other direction respect-
ing the subject-matter of the appeal as it thinks fit.

1163. — (1) If at any time during the pending of the
aPPea^ tne security so furnished by either party, as in the
last preceding section mentioned, appears inadequate, the
Supreme Court may, on the application of the other party,
require further security.

(2) In default of such further security being furnished as
required by the court, if the original security was furnished
by the appellant the court may, on the application of the
respondent, issue execution of the judgment or order appealed
against as if the appellant had furnished no security, and if
the original security was furnished by the respondent the
court shall, so far as may be practicable, stay all further
execution and restore the properties to the positions in
which they respectively were when the security which
appears inadequate was furnished, or give such directions
respecting the subject-matter of the appeal as it thinks fit.

1164. The security required under sects. 1158, 1161 and
1163, may be given either by deposit of cash in court or by
bonds of not less than two approved sureties.

When such security is proposed to be given by bond, the
names of the proposed obligors shall be submitted by the
appellant for the approval of the respondent. If the
respondent objects to any of the proposed obligors, the
objection shall be referred to the Judge in Chambers, whose
decision shall be final.

1165. When a certificate is granted under sect. 1155, the
appellant shall forthwith apply in court to the registrar to
prepare an index of all papers, documents, or accounts in the
case and to make an estimate of the cost of preparing and
transmitting the record, stating in his application whether
the record is to be printed in the colony or in England. On
receipt of the application the registrar shall prepare the
index, dividing the papers, documents, etc., into two classes :
(a) papers to be transmitted to the Eegistrar of the Privy
Council ; (b) formal and other papers not to be so transmitted,
and he shall make an estimate of the cost of translating, trans-
mitting, and forwarding to the Registrar of the Privy Council
the record of the case, including a margin of 1,000 dollars,

RULES OF APPEAL FOR THE COLONIES, ETC. 135

and shall on application send copies of his estimate to the
solicitor of the appellant.

Then follow the rules for the printing of the record in the colony
which agree with those in the Colonial Appeal Rules, and are set
out above at pp. 27—28.

1166. At any time within fourteen days from the delivery Reference
of the copy of the order and estimate, the appellant may to Judge-
object thereto, and if the registrar refuses to allow the objec-
tion the matter shall be referred to the Judge in Chambers,

whose decision shall be final.

1167. Ordinarily the whole of the proceedings in the
action shall be included in the record with the exception of
such papers, documents and accounts as are specified in the
exceptions to sect. 1158.

All translations required for the purpose of an appeal Verification
shall be by a sworn interpreter of the court, care being by translator-
taken to give explanations of all local terms, and shall
bear the signature of the interpreter and the seal of the court.

1169. Immediately after the court has declared the appeal
to be admitted the appellant shall furnish a copy of the index
to the respondent, or the solicitor of the respondent, and the
respondent may within seven days of the receipt of the same
apply to the registrar to include in the transcript any docu-
ments, papers, or accounts which he may consider necessaiy.
Such application shall either be allowed by the registrar or
shall be referred to the Judge in Chambers, whose decision
shall be final.

(2) Where in the course of the preparation of a record one
party objects to the inclusion of a document on the ground
that it is unnecessary or irrelevant, and the other party'
nevertheless insists upon its being included, the record, as
finally printed (whether in the colony or in England) shall,
with a view to the subsequent adjustment of the costs of and
incidental to such document, indicate in the index of papers
or otherwise, the fact that, and the party by whom, the
inclusion of the document was objected to.

1170. Immediately after the copy of the record has been
transmitted to the Registrar of the Privy Council the regis-
trar of the court shall give notice to the solicitors of the
respective parties to the appeal.

1171. When the copy of the proceedings (except as afore-

said) has been transmitted to His Majesty in Council, the deposit.

136

THE PRACTICE OF THE PRIVY COUNCIL.

Procedure to
enforce Order
of His
Majesty in
Council.

Saving clause
as to limited
operation of
Ordinance.

Taxation of
costs.

Colonial
Court of
Admiralty.

Criminal

appellant may obtain a refund of the balance (if any) of the
amount which he has deposited under sect. 1158.

1172. Whoever desires to enforce or to obtain execution
of any Order of His Majesty in Council shall file a certified
copy of the order sought to be enforced or executed to
the Supreme Court, which shall thereupon enforce or
execute it in the manner and according to the rules
applicable to the execution of its own judgments.

1173. Nothing herein contained shall be understood :

(a) To bar the full and unqualified exercise of His

Majesty's pleasure in receiving or rejecting appeals
to His Majesty in Council or otherwise howsoever ; or

(b) To interfere with any rules made by the Judicial Com-

mittee of the Privy Council, and for the time being in
force for the presentation of appeals to His Majesty
in Council or their conduct by the said Committee.

1174. All costs incurred in the colony in connection
with appeals to His Majesty in Council shall be subject to
taxation, and shall be recovered from the party liable to pay
the same in like manner as costs in an action.

The Supreme Court of the colony is the Colonial Court
of Admiralty within the meaning of the Colonial Courts of
Admiralty Act, 1890. The rules made in pursuance of the
Act for regulating the procedure and practice in Admiralty
cases in the Supreme Court of the Straits Settlements are
contained in an Order in Council dated October 3, 1895.

The Ordinance No. 7 of 1892, which establishes a Code of
Criminal Procedure, enacts that no appeal shall lie from a
judgment of a criminal court except as provided for by the
Code, or by any other law for the time being in force.
The Code makes no provision for an appeal in criminal
matters to the Crown beyond saving the royal prerogative.

Grant of
jurisdiction,

Appeal.

BRUNEI.

The State of Brunei was placed under the protection
of Her Majesty the Queen in 1888.

By an Order in Council of 1908 an appeal lies from the
High Court of Brunei to the Appeal Court of the Straits
Settlements, and thence, under the conditions prescribed for
appeals from the Straits Settlements, to the Privy Council .

CHAPTER IV.

RULES OF APPEAL FOR BRITISH INDIA AND CEYLON.

The largest number of cases which come before the
Privy Council are brought from the courts of British
India, and special rules govern the conditions of appeal
from this portion of the British Empire. Some provinces
have their own regulations ; but a large part of the rules
are uniform for the whole of British India. In view of
the large number of Indian appeals and the peculiar regu-
lations which affect them, the practice of the Privy Council
in relation to India is treated separately.

In 1858, the territories under the government of the Transfer to
East India Company were transferred to the Crown, and Crown-
are known as British India (21 & 22 Yict. c. 106). The
term India includes besides British India any territories
under any native prince or chief who is under the
suzerainty of His Majesty.

By a charter of George I., 1726, courts were established Courts,
at the three settlements at Madras, Bombay, and Bengal.
An appeal to His Majesty in Council was given by the
same charter, and judicial charters of 1732 and 1753 gave
an additional appeal to His Majesty in Council from
the courts of the Mayor and the superior courts in the
presidencies. Subsequent charters of 1774, 1800, and 1823
constituted Supreme Courts, and these in time were
replaced by High Courts created under the Charter
Acts, 1861 (24 & 25 Yict. c. 104) in the three presidencies
Bengal, Madras, and Bombay. These High Courts were con- High Courts,
stituted by Letters Patent, which were dated December 28,
1865, and which contained rules defining their jurisdiction,
and providing for appeals to the Privy Council The rules

138

THE PRACTICE OF THE PRIVY COUNCIL.

Oudh.

The Punjab.

Upper
Burma.

Lower
Burma.

as to appeal contained in these Letters Patent are set out
below, pp. 147 — 149.

In 1866, the High Court of the North-Western Provinces
was created under the Charter Act by Letters Patent, and
rules for appeal were prescribed in the same form. Since
1902 the North- Western Provinces have been united with
Oudh as the United Provinces of Agra and Oudh, but the
High Court of Allahabad retains jurisdiction over the whole
province of Agra.

There are, moreover, other Courts in British India
ranking as High Courts which were not created either by
charter or by Letters Patent, but owe their existence to the
legislative powers of the Governor- General in Council. The
highest court of appeal in any part of British India in which
there is a local government is a High Court. (See General
Clauses Act, 1897.) By the Oudh Civil Courts Act, 1877,
ss. 18 and 20, the Court of the Judicial Commissioner of
Oudh is the highest civil court of appeal in Oudh, and by
an Act of 1891 it is deemed a High Court when composed
of the Judicial Commissioner and the Assistant Commissioner
acting together.

The Chief Court of the Punjab is a court of final appellate
jurisdiction. (Act 18 of 1884.) The Court of the Judicial
Commissioner for Upper Burma is likewise a High Court.
(See the Upper Burma Civil Justice Eegulation, 1886,
s. 8 (1).) By the Civil Justice Eegulation, 1896, s. 12
(1), the court has all the powers of a High Court not
established under the statute 24 & 25 Viet. c. 104, and is
the court of final appellate jurisdiction throughout the area
to which the regulation applies.

The Lower Burma Courts Act, 1900, created a new
tribunal (the Chief Court for Lower Burma), which is the
highest Civil Court of Appeal and the highest court of
Criminal Appeal and Eevision in and for Lower Burma (a).
Before this Act was passed there had existed three Courts of
Appeal from which appeals lay to the Sovereign in Council ;
first, the Court of the Judicial Commissioner of Lower
Burma ; secondly, the Special Court, which was the Court of

(a) Act 6 of 1900, s. 8.

RULES OF APPEAL FOR INDIA. 189

Appeal for the towns of Rangoon and Moulmein ; and
thirdly, the Court of the Recorder of Rangoon, which was a
High Court for certain purposes. The Chief Court is now
the High Court for the whole of Burma (inclusive of the
Shan States) in reference to proceedings against European
British subjects and persons jointly charged with European
British subjects.

By Act 19 of 1896, the Court of the Judicial Commis- Central
sioner of the Central Provinces is a High Court. Provinces.

By the Coorg Courts Regulations of 1881 the Court of Coorg.
the Judicial Commissioner is to be deemed a High Court.

By the Bombay Act, 12 of 18G6, the Sadr Court of Sindh.
Sindh is the highest Court of Appeal in the Province.

By the Ajinere Courts Regulation Act, 1877 (s. 23) Ajmere.
(amended by Regulation 9 of 1893) the Court of the
High Commissioner is the highest Court of Appeal for the
district, and when he is sitting in certain cases his decisions
are to have the effect of a judgment of the High Court
(ss. 34 — 37). When the Chief Commissioner is not so sitting,
the appeal lies to the High Court of the North- West Pro-
vinces in the first place, instead of, by virtue of sect. 109 of
the Code of Civil Procedure, to the Sovereign in Council.
In Assam, by Act 12 of 1887, s. 3, four courts are con- Assam H. C.
stituted, of which the Court of the District Judge is the
highest Court of Appeal in the district, and, as such, a High
Court whence an appeal will lie under the Code of Civil
Procedure. In British Beluchistan, by the Civil Justice British Belu-
Regulation 9 of 1896, s. 7 (1), the Court of the Judicial chistan H. C.
Commissioner is to be .deemed the High Court for British
Beluchistan in civil jurisdiction. The Judicial Commis-
sioner may, for sufficient reason, review any decision or
order which has been passed by himself, and from which an
appeal has not been preferred to His Majesty in Council.
(.Sect. 73 (1).)

Aden and Perim are included in the Bombay Province, Aden,
and are part of British India (Aden Laws : Regulation 2 of
1891), and the Court of the Resident, which administers
civil and criminal justice, is the highest Court of Appeal.
No appeal lies from any revisional, or appellate, or original
decision of the Resident to any court in British India (Act 1
of 1864), and the court is therefore a High Court from

140

THE PRACTICE OF THE PRIVY COUNCIL.

Powers to
establish
new High
Courts.

Scheduled
districts.

Districts
added by
resolution
under 33 & 3i
Viet. c. 3.

Scheduled
Districts not
under C. C. P.

which an appeal lies to the Privy Council. It is, however,
subject to the superintendence of the High Court of Bombay
(see Municipal Officer of Aden v. Hajee Ismail (1905),
L. R. 33 I. A. 38), but an appeal lies to the Privy Council
in respect of orders made in exercise of the superintending
jurisdiction.

By sect. 2 of the Indian High Courts Act,1911(l & 2 Geo. 5,
c. 18), the power of His Majesty under sect. 16 of the Indian
High Courts Act, 1861, may be exercised from time to time,
and a High Court may be established in any portion of the
territories within His Majesty's dominions in India, whether
included or not within the limits of the local jurisdiction of
another High Court.

The Scheduled Districts are various parts of British India
which have never been brought within, or have from time to
time been removed from, the operation of the general Acts
and Regulations and the jurisdiction of the ordinary courts
of judicature, and are set out in the first schedule to the
Scheduled Districts Act, No. 14 of 1874, as modified up
to October 1, 1895. The districts include those men-
tioned in the first schedule, and other territories added by
resolution under sect. 1 of 33 & 34 Viet. c. 3 (1870), an Act to
make better provisions for making laws and regulations for
certain parts of India. That Act gives power to the local
government, with the sanction of the Governor- General in
Council, by a notification published as above mentioned, to
extend to any Scheduled Districts any enactment which is in
force in any part of British India. Under this power the
provisions of the Code of Civil Procedure as to appeals have
been extended to many of the Scheduled Districts.

An appeal lies to the Privy Council from the highest
Courts of Appeal for the district, which for the purposes of
appeal to the Privy Council are High Courts. The Order in
Council of 1838 contains the only rules in force for appeals
from Scheduled Districts to which the Code of Civil
Procedure is not so applied, but in practice the rules in the
Code are also followed.

However in an unreported case (Hitchins and Another v.
Secretary of State for India), in which judgment had been
entered on appeal from the District Judge in the High Court
of British Beluchistan, after the appellants had obtained

RULES OF APPEAL FOR INDIA. 141

leave to appeal from the said High Court, and had received
a certificate that the case was, as regards value and nature,
fit for appeal to Her Majesty, and that it therefore fulfilled
the requirements of the Code of Civil Procedure, and had
deposited in court 3,000 rupees as security for costs, and paid An appeal
800 rupees for the cost of the transcript, it was ascertained ^i™^'G'f'
that the Code of Civil Procedure had not been extended to
British Beluchistan. The British Beluchistan Civil Justice
Regulation of 1890 makes no express provision for appeals
to Her Majesty, but sect. 73 of the Regulation assumes that
such appeals may and will be preferred. In these circum-
stances, on a petition by the appellants setting out these
facts, Her Majesty gave special lea veto appeal, upon deposit-
ing in the Registry of the Privy Council the sum of 300 L
sterling as security for costs. Liberty was also given to the
appellants to apply to the High Court of British Beluchistan
for the release of the 3,000 rupees, and it was directed that
the transcript transmitted to the Registrar of the Privy
Council should be treated as the record in the appeal. In
this case the leave to appeal in the court below had been
asked under the Code of Civil Procedure, and not under the
Order in Council.

Outside British India there are no less than 780 native Native
states which are not subject to the Crown, though to a States-
greater or smaller extent they are dependent on it. Within
these states British jurisdiction of two kinds is exercised.

(1) In certain native states British officers exercise, for and
on behalf of the states and over their subjects, a civil and
criminal jurisdiction vesting in the states concerned.

(2) In the territories of the native states generally British
courts exercise, for and on behalf of the Crown, any personal
civil and criminal jurisdiction which the Crown may possess
over its own subjects or protected subjects, or a territorial
civil and criminal jurisdiction which has been ceded to the
Crown by the states concerned over their own subjects
within certain areas. In the first case the jurisdiction
of the British officer is political and not judicial in its
character, and the ultimate appeal from his decision is to
the Secretary of State for India in Council and not to His
Majesty in Council. Cf. Hemchand Devchand v. Azam
Sakarlal and The Jaluka of Kotda-Sangani v. The State of

142

THE PRACTICE OF THE PRIVY COUNCIL.

Gondal (L. R. 33 I. A. 1 and (1906) A. 0. 212), where it
was held that in two cases brought in the Court of the
• Assistant Political Agent in Kathiawar an appeal did not lie
to the Privy Council from the appellate decrees of the
Governor of Bombay in Council. Special leave to appeal
had been obtained, but the Judicial Committee in that
case found that Kathiawar was not a part of the King's
dominions and that the Courts of the Political Agents were
not judicial courts ( (1906) A. C. p. 237), nor were their
decisions judicial decisions. At the same time they held
that if such a court acted judicially, a person aggrieved by
their judgment would not be precluded from applying to the
King in Council for redress merely by the fact that he was
Appeal from not the King's subject (p. 238). But if its action were
P°litical the aPPeal laJ to the Secretary of State in Council in
virtue of sect. 3 of 21 & 22 Viet. c. 106. The political juris-
diction exercised by His Majesty in these native states is
entirely distinct fioni that exercised by the High Courts in
British India. Maharajah Madhawa Singh v. Secretary of State
for India (1904), L. R. 31 I. A. 239, where it was held that
an appeal would not lie from the report of special commis-
sioners appointed to inquire into an alleged crime of the
Maharajah. The appellant might, indeed, apply to His
Majesty to refer the matter specially under sect. 4 of 3 & 4
Will. IV. c. 41 to the Judicial Committee. See the case of
The Nawab of Sumt (9 Moo. P. C. 88, and infra, p. 241).

Subsequently in an appeal in the suits of Hansraj
v. Sudar Lai and Hansraj v. Devarlca Das ( (1908), 35
I. A. 88) special leave was given to appeal from a decree
of the court of the Political Agent to the Governor-
General in Central India affirming a decree of the Political
Agent at Sehore. Liberty, however, was given to the
Secretary of State for India to intervene upon the
question whether His Majesty in Council should entertain
an appeal in the suit on account of the authority from
which the appeal was brought being one from which an
appeal should not be admitted. As, however, their lord-
ships were of opinion that the decision appealed from was
correct, the question of the competency of the appeal was
not settled.

Foreign (2) In those cases, however, where British courts are

jurisdiction

RULES OF APPEAL FOR INDIA. 143

established in native states to try either British subjects or in native
protected subjects or subjects over whom jurisdiction has states-
been delegated by the rulers of the native states to the
Crown, the jurisdiction is truly judicial and is exercised
under powers like those in other native protectorates in the
empire, in virtue of the Foreign Jurisdiction Acts. The
jurisdiction was formerly based upon the Indian Act, 21
of 1879, but the rules of that Act are now displaced by the
Order in Council of June 11, 1902, which was issued under
the Foreign Jurisdiction Act, 1890. The Order in Council
vests in His Majesty personal jurisdiction over all British
subjects and territorial jurisdiction over all subjects in
native states when such jurisdiction has been ceded to the
Crown. Wherever the English Court is constituted under
this Order, an appeal lies to His Majesty in Council
whenever the court or the Privy Council thinks fit to allow
the appeal, though there may be an intermediate appeal to
an Indian High Court.

Thus, where the English resident in a native state Appeal to
governed on behalf of the Crown, the jurisdiction was held p- c-
to be judicial, and an appeal lay to the Privy Council from
the appellate order of a High Court in a suit brought
before the Resident's court. Cf. In re Lubeck (1905), 32
I. A., 217, where the Judicial Committee reversed an Order
of the Resident in the state of Mysore, suspending a barrister
from practice for four months.

To several of the British courts in native states the Code
of Civil Procedure has been applied, and its rules regulate
appeals from these courts to the Privy Council. The Code
of Civil Procedure applies to the following courts acting as
High Courts or as Courts of Final Appellate Jurisdiction, for
cases arising in the native states : (1) the Court of the
Chief Judge of Mysore ; (2) the Court of the Resident at
Hyderabad with appellate jurisdiction from the Judicial
Commissioners of East and West Berar, "Hyderabad
Assigned Districts " ; (3) the Court of the Resident of
Kashmir ; (4) Rajputana and various other courts.

An Order in Council of 1838, issued under 3 & 4 Will. IV. Rules of

1 , s. 24, dealt with appeals from all courts of judica-
ture in the territories under the government of the East

144

THE PRACTICE OF THE .PRIVY COUNCIL.

Code of Civil
Procedure.

Kules for
Chartered
High Courts.

High Court
Kules.

India Company, and still applies to appeals from the whole
of British India. The clauses which are applicable are set
out below at pp. 146 — 147, but the rules for appeal are now
to be found mainly in the Code of Civil Procedure, of which
a new edition was made by an Act of the Governor-General
in Council, 1908. The sections of the Code and the Order
which contains additional rules are set out below at pp. 149 ff.
The Code, however, does not apply to those courts in the
Scheduled Districts to which it has not been expressly made
applicable by the notification of the Viceroy, and for the
courts in those districts the Order in Council alone strictly
supplies the regulations of appeal. Besides the rules of the
Code, however, the regulations contained in the Letters
Patent by which the High Courts in the four provinces were
constituted apply to appeals from those courts.

These rules, which are identical for the four chartered
high courts, are set out below, at pp. 147 — 149.

It is to be noted that they agree with the like rules in the
Code of Civil Procedure as to the appealable amount in
a civil case and as to the transmission of the record, but
they confer an extended right of appeal from interlocutory
judgments and in criminal cases where the High Court
certifies that the case is a fit one for appeal.

Moreover, the High Courts (including those courts of
highest appellate jurisdiction which rank as High Courts)
have exercised powers given them by the Code of Civil
Procedure (ss. 129 — 131) to make rules regarding the
admission of appeals to the Privy Council which define,
more exactly than the rules of the code, the procedure to be
adopted in making up the record, etc. These rules have
been published, and are set out at pp. 165 ff.

Finally, the Judicial Committee Rules of 1908, which
deal with the steps to be taken when the appeal has been
brought to England, apply to appeals from India. These
rules with the notes upon them are to be found in
Part II.

In an appeal from India it is necessary to take
account of all these various sets of rules governing the
practice.

Appended is a table of the rules governing the appeals
from the High Courts :

RULES OF APPEAL FOR INDIA.

145

Court by which the Rules
were framed.

Bombay High Court...

Calcutta High Court...
Madras High Court ...

X. W. P. High Court

Court of the Judicial
Commissioner, Oudh

Punjab Chief Court...

Court of the Judicial
Commissioner, Cen-
tral Provinces

Where the Rules have been
published.

Chapter VI. of the Rules
of the Bombay High
Court, Appellate Side.

Published in the Calcutta
Gazette of 20th May,
1891, Part I., page 497,
etc.

Published in Fort St.
George Gazette of 28th
November, 1876, Part
II., pages 460 and 461.

Published in North-
Western Province* and
Oudh Gazette of 7th
December, 1889, Part
II., page 1844, etc.

Oudh Gazette of llth
July, 1874, Part II.,
page 13, etc.

Published in Chapter
LXI. of Vol. I. of the
Rules and Orders of
the Punjab Chief Court
(1893).

Published in Central Pro-
i-hw* Gazette of 2nd
July, 1887, Part II.,
page 112, etc.

Provisions regulating

Appeals to His
Majesty in Council.

Charter creating
*. C. ; O. in C.
1838 and 1908 ;
Letters Patent
creating H. C. ;
C. C. P.
Do.

Do.

0. in C. ; Letters
Patent ; C. C. P.

0. in C., 1838 :
C. C. P. applied
under Sched.
Dist. Act.
Do.

Do.

Rules of Appeal in Order in Council, 1838,

The Order in Council recites that by an Act passed in Order in
the fourth year of the reign of His late Majesty King £ouv^1
William the Fourth, intituled, " An Act for the better 8fc4WilLI
Administration of Justice in His Majesty's Privy Council," c- 41» s- 24-
it is amongst other things enacted, that " it shall be lawful
for His Majesty in Council from time to time to make any
such rules and orders as may be thought fit for regulat-
ing the mode, form, and time of appeal to be made from
the decisions of the courts of judicature in India or else- Courts East-
where to the eastward of the Cape of Good Hope (from the Sw
decisions of which an appeal lies to His Majesty in Council), Hope.

P.G. 10

146 THE PRACTICE OF THE PRIVY COUNCIL.

and in like manner from time to time to make such other
regulations for the preventing delays in the making or
hearing such appeals, and as to the expenses attending the
said appeals, and as to the amount or value of property in
respect of which any such appeal may be made, and proceeds
to approve of the several rules, orders, and regulations
contained in the schedule hereunder written, and to order
that the same be respectively observed by Her Majesty's
Supreme Courts of Judicature at Fort William in Bengal,
Fort St. George and Bombay respectively, and all other
courts of judicature in the territories under the government
of the East India Company, and by all persons whom it
shall or may concern."

THE SCHEDULE TO ORDER IN COUNCIL, APRIL 10, 1838.
1. That from and after December 31 next, no appeal to
Her Majesty, her heirs, and successors, in Council, shall be
allowed by any of Her Majesty's Supreme Courts of Judi-
cature at Fort William in Bengal, Fort St. George, Bombay,
Petition for or by any other courts of judicature in the territories under
the purpose of the government of the Bast India Company, unless the
petition for that purpose be presented within six calendar
months (ri) from the day of the date of the judgment, decree,
or decretal order complained of, and unless the value of the
matter in dispute in such appeal shall amount to the sum of
10,000 rupees. 10,000 company's rupees (o) at least.

Certificate of 2. That in all cases in which any of such courts shall
value. admit an appeal to Her Majesty, her heirs and successors,

in Council, it shall specially certify on the proceedings that
the value of the matter in dispute (p) in such appeal
amounts to the surn of 10,000 company's rupees or
upwards, which certificate shall be deemed conclusive of the
fact, and not be liable to be questioned on such appeal by
any party to the suit appealed.

(ri) This accords with the Charter of 1774. The six months will
be calculated from the final decision given in review of judgment. This
period is absolute, and will not be enlarged by the court in India.

(o) And, where there is no certificate that the case is fit for appeal,
the amount or value of the subject-matter in the suit must be
10,000 rupees, in the court of first instance.

(p) These words relate to the whole matter involved in the suit
which was the subject of judicial inquiry in the suit. Mussumat
Ameena Khatoor v. Badhabenod Misser, 1 Moo. I. A. 261 (1859).

RULES OF APPEAL FOR INDIA. 147

3. Provided nevertheless, that nothing herein contained Prerogative
shall extend, or be construed to extend to take away, Preserved-
diminish or derogate from the undoubted power and
authority of Her Majesty, her heirs and successors, in
Council, upon the petition at any time of any party aggrieved
by any judgment, decree, or decretal order of any of the
aforesaid courts, to admit an appeal therefrom upon such
other terms and upon and subject to such other limitations,
restrictions, and regulations, as Her Majesty shall in any
such special case think fit to prescribe.

Rules in Letters Patent creating High Courts of Calcutta,
Madras, Bombay and Allahabad.

Appeals to Privy Council.

39. And we do further ordain that any person or persons Power to
may appeal to us, our heirs and successors, in our or their aPPeal-
Privy Council, in any matter not being of criminal juris-
diction, from any final judgment, decree, or order of the
said High Court of Judicature made on appeal, and from
any final judgment, decree, or order made in the exercise
of original jurisdiction by judges of the said High Court, or
of any Division Court, from which an appeal shall not lie to
the said High Court under the provision contained in the
15th clause of these presents : Provided, in either case, that
the sum or matter at issue is of the amount or value of
not less than 10,000 rupees, or that such judgment, decree,
or order shall involve, directly or indirectly, some claim,
demand, or question to or respecting property amounting
to or of the value of not less than 10,000 rupees ; or from
any other final judgment, decree, or order made either on
appeal or otherwise as aforesaid, when the said High Court
shall declare that the case is a fit one for appeal to us, our
heirs or successors, in our or their Privy Council. Subject
always to such rules and orders as are now in force, or may
from time to time be made, respecting appeals to ourselves
in Council from the courts of the said presidency ; except so
far as the said existing rules and orders respectively are
hereby varied, and subject also to such further rules and
orders as we may, with the advice of our Privy Council,
hereafter make in that behalf.

10—2

148

THE PRACTICE OF THE PRIVY COUNCIL.

Appeal from
interlocutory
judgments.

Appeal in
criminal
cases, etc.

Kule as to
transmission
of copies of
evidence and
other docu-
ments.

40. And we further ordain that it shall be lawful for the
said High Court of Judicature, at its discretion, on the
motion, or if the said High Court be not sitting, then for
any judge of the said High Court, upon the petition of any
party who considers himself aggrieved by any preliminary
or interlocutory judgment, decree, order, or sentence of the
said High Court, in any such proceeding as aforesaid, not
being of criminal jurisdiction, to grant permission to such
party to appeal against the same to us, our heirs and
successors, in our or their Privy Council, subject to the same
rules, regulations, and limitations, as are herein expressed
respecting appeals from final judgments, decrees, orders, and
sentences.

41. And we do further ordain that from any judgment,
order, or sentence of the said High Court of Judicature
made in the exercise of original criminal jurisdiction, or in any
criminal case where any point or points of law have been
reserved for the opinion of the said High Court in manner
hereinbefore provided, by any court which has exercised
original jurisdiction, it shall be lawful for the person
aggrieved by such judgment, order, or sentence to appeal to
us, our heirs or successors, in Council, provided the said
High Court shall declare that the case is a fit one for such
appeal, and under such conditions as the said High Court
may establish or require, subject always to such rules and
orders as we may with the advice of our Privy Council,
hereafter make in that behalf.

42. And we do further ordain that, in all cases of appeal
made from any judgment, order, sentence, or decree of the
said High Court of Judicature to us, our heirs or successors,
in our or their Privy Council, such High Court shall certify
and transmit to us, our heirs and successors, in our or
their Privy Council, a true and correct copy of all evidence,
proceedings, judgments, decrees, and orders had or made,
in such cases appealed, so far as the same have relation to
the matters of appeal, such copies to be certified under the
seal of the said High Court. And that the said High Court
shall also certify and transmit to us, our heirs and successors,
in our or their Privy Council, a copy of the reasons given by
the judges of such court, or by any of such judges, for or
against the judgment or determination appealed against.

RULES OF APPEAL FOR INDIA. 149

And we do further ordain that the said High Court shall, in
all cases of appeal to us, our heirs or successors, conform to
and execute, or cause to be executed, such judgments and •
orders as we, our heirs or successors, in our or their Privy
Council, shall think fit to make in the premises, in such
manner as any original judgment, decree, or decretal orders,
or other order or rule of the said High Court, should or might
have been executed.

INDIAN CODE OF CIVIL PROCEDURE.

(ACT 5 OF 1908). PART VII., AND
ORDER XLV., SCHEDULE I.

APPEALS TO THE PRIVY COUNCIL.

109. Subject to such rules as may from time to
time be made by His Majesty in Council (q) regarding
appeals from the courts of British India, and to the
provisions hereinafter contained, an appeal shall lie (r)
to His Majesty in Council :

(a) From any («) decree or final order passed on Decrees from

(q) The Orders in Council containing " such rules " specifically
applying to the courts of British India are dated April 10, 1838
(made under 3 & 4 Will. IV. c. 41, s. 24), and December 21, 1908.
See infra, Part II.

(r) The application for leave to appeal must be made within six
months from the date of the decree. The period is fixed by the
Order in Councrl of 1838, and also by the Limitation Act 9 of 1908,
Schedule 179. Sect. 5 thereof gives power to enlarge the time. But
this power would seem to be ultra vires. Gajadhur Pershad v. T/ie
Widows of Emam Ali Beg, 15 Bengal L. R. (1875). at 223 (P. C.) ; and
see Jawahir Lai v. Sarain Das, 1 All. (1878) 644. Cf. Kirlcland v.
Modee. Pextonjie Khood-sedjee (3 Moo. I. A. 220.

(«) Decree is defined in sect. 2 of the Act as the formal expression
of an adjudication which so far as regards the court expressing it
conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit, and may be either
preliminary or final. It shall be deemed to include the rejection of
a plaint and the determination of any question within sect. 47
or sect. 144, but shall not include (a) any adjudication from which an
appeal lies as an appeal from an order ; or (6) any order of dismissal
for default..

A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when
such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.

which appeals
lie.

150

THE PRACTICE OF THE PRIVY COUNCIL.

Sect. 109.

appeal by a High Court (t) or by any other
court of final appellate jurisdiction (u) ',

(b) From any decree or final order (t) passed by a

High Court in the exercise of original civil
jurisdiction ;

Definition
of "High

Court."

(t) Decree or Final Order. — A decree directing accounts is final
within the section. Rahimbhoy Hubibbhoy v. Turner (1890), L. R.
18 I. A. 6 ; 15 Bom. p. 155. No order, judgment, or other pro-
ceeding can be final which does not at once affect the status of the
parties for whichever side the decision may be given ; so that if it is
given for the plaintiff it is conclusive against the defendant, and if it
is given for the defendant it is conclusive against the plaintiff. Per
Brett, L.J., Standard Discount Co. v. La Grange, 3 C. P. D. p. 71.

An order of a District Court in execution proceedings limiting the
recovery of mesne profits is in the nature of a final decree, and is
appealable. Raja Bhup Bahadur Singh v. Bijai Bahadur Singh
(1900), L. R. 27 I. A. 209.

An order passed by the High Court deciding that a person should
be allowed to sue in forma pauperis in not a final decree passed in an
appeal within this section, nor is it a final judgment made on appeal
within sect. 39 of the Letters Patent, so that the High Court has no
power to grant a certificate for leave to appeal from it. Sakan
Sing v. Gopal Neogi 9 C. W. N. 296.

An order of the High Court refusing to admit an appeal after the
period of limitation prescribed by the Act is not a decree passed on
appeal by the court under sect. 109 of the Code, and there is therefore
no jurisdiction to grant leave to appeal therefrom. Sundir Koer v.
Chandishur Prosed Singh 30 Calc. 179 ; Karsondas Dharansey v.
Gangarai, L. R. 32 Bomb. 108.

" High Court " shall mean the highest Civil Court of Appeal in the
part of British India in which the Act or Regulation containing the
expression operates. The definition of " High Court " applies to all
Acts of the Governor- General in Council made after January 3, 1868.
" District " means the local limits of the jurisdiction of a principal
Civil Court of original jurisdiction, and includes the local limits of
the ordinary civil jurisdiction of the High Court.

(u) Appellate Jurisdiction. — When the High Court of Bombay in
the exercise of its extraordinary original civil jurisdiction, removed to
itself for trial a suit instituted in the Resident's Court at Aden, a
certificate for leave to appeal to the Privy Council was granted under
sect. 40 of the amended Letters Patent, the value of the subject-
matter being over 10,000 rupees and the question raised being one of
jurisdiction. Municipal Officer, Aden v. Abdul Karim, I. L. R. 28
Bomb. 292).

(x) A limit is placed upon the discretion of the High Court of
certifying by sect. 111. See note (c), p. 154, infra. It would seem
from the wording of this sub-sect, (c) of the Code and the limitation
of the restriction in sect. 110 to clauses (a) and (b) of sect. 109, that
the Legislature intended to repose a discretion in the Indian courts
to admit an appeal from any decree, whether it is of the value of
10,000 rupees or not, or whether a substantial question of law is
involved or not — in fact, in any case of great importance or any test
case — and that the employment of that exceptional discretion will not

RULES OF APPEAL FOR INDIA. 151

hereinafter provided, is certified to be a fit

one for appeal to His Majesty in Council.

110. In each of the cases mentioned in clauses (a) Value of sub-
and (b) of sect. 109, the amount or value of the Ject-matter-
subject-matter of the suit in the court of first instance
must be 10,000 rupees (y) or upwards, and the amount

afterwards be questioned in England if facts exist which justified it. In
preferring an appeal to the Privy Council in a case which is under the
appealable amount, the applicant should first apply to the High
Court for a certificate under the second part of rule 5 (below) that the
case is otherwise a fit one for appeal. M oti Chand v. Ganga Pershad
Singh (1901), 29 I. A. 40.

(y) " Subject-matter of the suit " is not the same as subject-matter in
dispute. Hikmat v. Wali-un-nissa, 12 All. at p. 509 (1889). Where the
counter-claim is below the appealable amount, the total amount must
be looked at. Munley v. Palache, 73 L. T. 98 (1895) ; 11 R. 566 ;
see also Kalka Singh v. Paras Earn, P. C. Arch. (1894). The whole
amount is to be looked at as it affects the interest of the party who
is prejudiced by it. Macfarlane v. Leclaire, 15 Moo. P. C. 181 ;
Allan v. Pratt, 13 A. C. 780 (1888), Joogulkishore v. Jotendro Mohun
Tagore, 8 Calc. 210 (1882). For the mode of estimating the value, see
Sree Mutty v. Sutteeschunder, supra. The stamp duty is not con-
clusive. Mohun Loll Sookul v. Bebee Doss, 1 Moo. I. A. 428 (1860).

Value of Suit. — Unless the case complies with both conditions, the
appeal is inadmissible. Where the amount involved is under the
appealable amount, before the application for special leave to the
Privy Council, the applicant should first apply to the High Court for
a certificate that the case is otherwise a fit one for appeal. Where
the plaintiff claimed damages above the appealable amount and his suit
was dismissed without determination of the amount that would have
been recoverable, and the High Court refused leave to appeal, the
Judicial Committee granted special leave. Moulvi Mahomed Huq v.
Wilkie, L. R. 33 I. A. 166.

Appealable amount under Letters Patent. — In the Letters Patent
of 1865 and 1866 creating the High Courts of Bengal, Madras, Bombay
and the North-West Provinces, it is provided that an appeal shall
lie from any final judgment of the High Court when the sum or
matter in issue is of the value of 10,000 rupees, or such judgment,
decree, or order shall involve, directly or indirectly, some claim,
demand, or question to or respecting property amounting to the
value of 10,000 rupees. As to the right of appeal under this clause, see
Court of Wards v. Rajah Leelarund Singh, 16 Sutt. W. R. 191 ; and
cf. Gurra Prosunno Lahiri v. Jotundra Mohun Lehiri (1905), 32 Calc.
963. There a case having been sent back by the Judicial Committee
to the High Court with a direction to take certain accounts, and a
Division Bench of the High Court having taken the account and
made a final decree, it was held that an appeal would lie to His Majesty
in Council from the decree under sect. 39 of the Letters Patent. The
amount in dispute was over 10,000 rupees, and the section of the
Civil Procedure Code did not apply.

Cross-appeal. — Appeal from part of a decree does not open to
respondents the whole decree. In certain circumstances they have
been allowed to present a cross-appeal. Myna Boyee v. Oottoram, 1
Suth. W. R. 452, 456 (1861). The measure of value for determining a

152

THE PRACTICE OF THE PRIVY COUNCIL.

Sect. lit.

Special
appeal.

Concurrent
findings.

Second
appeals.

or value of the matter in dispute on appeal to His
Majesty in Council must be the same sum or upwards,
or the decree or final order must involve, directly or
indirectly, some claim or question to, or respecting,
property of like amount or value.

And where the decree appealed from affirms (z) the

plaintiff's right of appeal is the amount for which the defendant has
successfully resisted a decree. Mesne profits, if demanded by the
plaint, must enter into the calculation of the value. Mahideen
Hadijiar v. Pitchey, (1893), A. C. 193 ; 62 L. J. P. C. 96.

(z) " Affirms." — This provision is a re-enactment of sect. 5 of the
Act 6 of 1874, which purports to limit the appeals under sect. 39
of the Letters Patent. Cf . as to the power of Indian legislature to so
restrict appeals, In re Feda Hossein, I Calc. (1876) 431.

The appeal by which a case heard on its merits by two successive
courts can be brought before the High Court is known as a " special
appeal." Golam Ali v. Kalikista Thakoor, 18 Suth. W. R. 299 ; and
12 Beng. L. R. P. C. 107 (1872). Cf. Ramchunder Dutt v. Chunder
Coomar Mundul, 13 Moo. I. A. 181 ; Moulvie Sayyud Ughur AH v.
Mussumut Bebee UUaf Fatima, ibid. 232 (Bengal, 1869). If, there-
fore, it is desired to reopen the facts before the Judicial Committee,
it is necessary to apply in due time for special leave to appeal.
Golam Ali, etc. (supra), 12 Beng. L. R. 107, at p. 108.

Section 110 lays down in a somewhat more stringent form a rule
which the Judicial Committee generally observe, that they will not,
unless under very exceptional circumstances, disturb a finding of fact
in which the courts below have concurred. In an appeal, therefore,
from an appellate judge who has affirmed the judgment of a lower
court, every subsequent court, including their lordships of the
Judicial Committee, will be bound by the findings of facts, unless
special leave to appeal therefrom be first obtained. Cf. Lachman
Singh v. Mussumat Puna, L. R. 16 I. A. 125 (1889) ; Ramratan Sukal
v. Mussumat Nandu, L. R. 19 I. A. 1 (1891) ; Jagarneth Per shad v.
Hanuman Pershad (1908), L. R. 36 I. A. 221. The Judicial Committee
is peculiarly unwilling to interfere with a concurrent finding of fact
when the question embraces a great number of facts whose signi-
ficance is best appreciated by those who are most familiar with
Indian manners and customs. Cf. Umreo Begam v. Irshed Husain,
21 1. A. 163 ; and Kunwar Sauwel Singh v. Rani Kunwar, 33 I. A. 53.
Concurrent findings will not be interfered with unless very definite
and explicit grounds are assigned. Moung Tha Hnyeen v. Moung Pan
Nyo, L. R. 27 I. A. 166 (1900). The rule is none the less applicable
because the courts below have not taken precisely the same view
of the weight to be attached to oral and documentary evidence
respectively. Ram Narain Singh v. Chowdhery Hanuman Sahai,
(1902) 30 I. A. 41. (See below, pp. 347 ff.)

Second Appeals. — In Rajah Amir Hassan KJian v. Sheo Baksh
Singh, L. R. 11 I. A. 237, the appeal was allowed where there was
sunstantial error or defect in procedure. Cf. Rani Hemanta v.
Kumari Debi Brojendra Kishore, L. R. 17 I. A. 65. A second appeal
wiD lie on a finding of mixed law and fact, e.g., adverse possession,
where such finding depends upon the proper legal conclusion to be
drawn from the findings as to simple facts. Maharajah Sir Luch-
meswar Singh Bahadoor v. Sheik Manowar Hossein, L. R. 19 I. A. 48
( 1891). Although the third court cannot enter upon the soundness of

RULES OF APPEAL FOR INDIA.

153

decision or final order of the court immediately below Concurrent
the court passing such decree or final order, the appeal findmss-
must involve some substantial question of law (a).

111. Notwithstanding anything contained in section Bar of certain
109, no appeal shall lie to His Majesty in Council
from the decree or order of one judge of a High Court
established under the Indian High Courts Act, 1861 (b),

findings of fact, it can nevertheless adjudicate as matter of law upon
the soundness of the conclusions which have been derived from those
findings. Ram Gopal v. Shamskaton, L. R. 19 I. A. 228 (1892) ;
Lukhi Naragin Jagadeb v. Maharajah Jodu Nath Deo, L. R. 21 I. A.
at 45 (1893). Where additional evidence was taken by the appellate
court, and the finding of the first court overruled, the Board refused
on a question of fact to reverse the decree appealed from. The finding
must be shown to be clearly wrong though the materials for decision
are different in the two courts. Jagarnath Pershad v. Hanuman
Pcrshad (1908), 36 I. A., p. 221. Cf. too, Rani Srinati v. Khajindra
Narain Singh, L. R. 31 I. A. 12, where the Judicial Committee
refused to interfere with concurrent findings of fact, though they
thought the case one of great difficulty.

(a) The High Court certificate should show that the requirements
of this section are fulfilled, or that the case is fit for appeal within
sect. 109 (c). Where the decree affirms the court below, the certi-
ficate must show that a substantial question of law is involved.
It is desirable that the High Court in refusing a certificate for leave to
appeal to His Majesty in Council shall give their reasons for refusing
it. Venganat Swaroosathil v. Cherakunnath Namviyathan, (1906) L. R.
33 I. A. 67.

Substantial Point of Law. — Where an appeal was admitted contrary
to the section requiring a substantial point of law to be involved if
the decree appealed from affirms the decision of the court below, it
was dismissed by the Judicial Committee without a hearing. The
High Court had granted leave to appeal stating that there seemed to
be a point of law, which, however, had not been argued, but the
Privy Council held there was no substantial point of law. Karup-
panai Scrvai v Srinivasai Chetti, 1901, L. R. 29 I. A. 38.

Where no certificate of value was given, it was held that the
High Court had no jurisdiction to give leave to appeal. Where the
High Court partially allowed an appeal from a decision of the judge
in a land valuation case, upholding the collector's award, it was held
that the decree of the High Court was properly a decree of affirmance
of the first court's decree as regards the subject-matter of the proposed
appeal, and as there was no^ question of law the application should be
refused.

c. w. x.

refused. Srie Xath Roy Bahad v. Secretary of State for India, 8

api
'/ '

(b) " Established under the Indian High Courts Act, 1861."— These High Courts,
are the High Courts at Calcutta, Madras, Bombay, and Allahabad.
By sect. 15 of the Letters Patent, 1865 and 1866, thereunder, an
appeal is given from such judges, not being such majority, to the
High Court, as follows : —

And we do further ordain that an appeal shall lie to the said
High Court of Judicature at Fort William, in Bengal, from the
judgment (not being a sentence or order passed or made in any
criminal trial) of one judge of the said High Court, or of one

154

THE PRACTICE OF THE PRIVY COUNCIL.

Saving of
His Majesty's
pleasure,

Second
appeal.

Judges
differing in
opinion.

Special leave.

or of one judge of a Division Court, or of two or more
judges of such High Court, or of a Division Court
constituted by two or more judges of such High Court
whenever such judges are equally divided in opinion, and
do not amount in number to a majority of the whole of
the judges of the High Court at the time being ; or
from any decree (c), which under section 102, is final.

112. Nothing contained in this Code shall be
deemed :

(a) To bar the full and unqualified exercise of His
Majesty's pleasure (d) in receiving or rejecting

judge of any Division Court, pursuant to sect. 13 of the said
recited Act, and that an appeal shall also lie to the said High
Court from the judgment (not being a sentence or order as afore-
said) of two or more judges of the said High Court, or of such
Division Court, wherever such judges are equally divided in
opinion, and do not amount in number to a majority of the whole
of the judges of the said High Court at the time being ; but that
the right of appeal from other judgments of Judges of the said
High Court, or of such Division Court, shall be to us, our heirs,
or successors, in our or their Privy Council as hereinafter provided.
This appeal, given by sect. 15 of the Letters Patent, has not been
taken away, nor is the appeal to the Privy Council from the decision
of such High Court. See Sri Gridhoriji Maharaj Tickait v. PurU'
stotum Gossami, 10 Calc. at 817 (1884).

(c) The effect of this provision is to limit the decrees which the
court under sect. 109 can certify as fit for appeal. Sect. 102 is as
follows :

No second appeal shall lie in any suit of the nature cognizable
in courts of small causes, when the amount or value of the subject-
matter of the original suit does not exceed 500 rupees.
The C. C. P. contains the following provision as to the hearing of
appeals :

Sect. 98. When the appeal is heard by a Bench of two or more

judges, the appeal shall be decided in accordance Avith the opinion

of such judges or of the majority (if any) of such judges. Where

there is no such majority which concurs in a judgment varying or

reversing the decree appealed against, such decree shall be

affirmed : Provided that where the Bench hearing the appeal is

composed of two judges belonging to a court consisting of more

than two judges, and the judges composing the Bench differ in

opinion on a point of law, the appeal may be referred to one OB

more of the other judges of the same court, and shall be decided

according to the opinion of the majority (if any) of all the judges

who have heard the appeal, including those who first heard it.

As to appeals from one judge sitting on appellate side as to the

interpretation of a Privy Council decretal order, see Rajah Lalanund

Singh v. Maharajah Lakchmissar Singh, 14 W. R. P. C. 23 (1870).

(d) Special leave. — Before an application for special leave to appeal
is made to the Privy Council, leave should be applied for from the High
Court, although the matter isbelo w the appealable amount. Moti Chand

RULES OF APPEAL FOR INDIA.

appeals to His Majesty* in Council, or otherwise
howsoever ; or

(b) To interfere with any rules made by the Judicial

Committee of the Privy Council, and for the

time being in force, for the presentation of

appeals to His Majesty in Council, or their

conduct before the said Judicial Committee.

Nothing herein contained applies to any matter of

criminal (e) or admiralty or vice-admiralty jurisdiction

or to appeals from orders and decrees of prize courts.

155

and of rules
for conduct
of business
before
Judicial
Committee.

Criminal and

Admiralty

Appeals.

v. Ganga Parshad Singh, L. R. 29 1. A. 42. Where such application has
not been made, the reason for the omission should be set out in the peti-
tion to His Majesty in Council for special leave to appeal. Gungowa
v. Erau-a, 13 Moo. I. A. 433 (1870). But in most cases where there is a
doubt whether the matter is below the appealable value, it is as well
to ask for leave to appeal below, if for no other reason than to obtain
an opinion from the court as to whether they would be favourable to
admitting the appeal if they had the power. See Mutitsauniy Jaga-
vera v. Vencatasu-ara Yettai, 10 Moo. I. A. at 320 (1865) ; Gooroopersad
Khoond v. Juggut Chunder, 8 Moo. I. A. at 168 (1860). His Majesty's
prerogative right to admit an appeal is not interfered with by the code.
Rahimbhoy Hubibbhoy v. C. A. Turner (1890), I. L. R. 15 Bomb., p. 155.
The Indian legislature has no power to limit that prerogative without
the sanction of the Crown. Modee KaiJchoorrow Hormusjee v. Coover-
baee, 1 Suth. P. C. 268, 271. Where the High Court refused, for want
of jurisdiction, to direct the manager of an estate to remain in posses-
sion pending an. appeal which had not been certified by the High
Court, but granted by special leave of the Queen, the Privy Council
declined to interfere, but advised the grant of an order staying pro-
ceedings, the petitioner being answerable in damages, and any
aggrieved respondent having leave to move to discharge the order.
Mohesh Chandra Dial v. Satrughan Dhal, L. R. 26 I. A. (1899) 281.

(e) The Letters Patent, 1865 (hi terms practically identical for
Bengal, Madras and Bombay), contain, also, the following pro-
vision :

Sect. 41. And we do further ordain that from any judgment, Letters
order, or sentence of the said High Court of Judicature made in patent as
the exercise of original criminal jurisdiction, or in any criminal to criminal
case where any point or points of law have been reserved for the appeal,
opinion of the said High Court in manner heretofore provided by
any court which has exercised original jurisdiction, it shall be
lawful for the person aggrieved by such judgment, order, or sen-
tence to appeal to us, our heirs or successors, in Council, provided
the said High Court shall declare that the case is a fit one for such
appeal, and under such conditions as the said High Court may
establish or require, subject always to such rules and orders as we
may, with the advice of our Privy Council, hereafter make hi that
behalf.

The Indian Criminal Procedure Code, 1898, s. 404 (cf. Act V. of 1898,
p. 605), enacts that no appeal shall lie from any judgment or order of
a criminal court except as provided by this Code or by any other law
for the time being in force. It was formerly a question of consider

156

THE PRACTICE OF THE PRIVY COUNCIL.

Rules of
appeal.

Certificate as
to value or
fitness.

India.

ORDER XLV.

Order XLV. contains the following rules for appeal
to the King in Council which further specify the
procedure.

1. In this Order unless there is something repug-
nant in the subject or context, the expression " decree"
shall include a final order (/ ).

2. Whoever desires to appeal to His Majesty in
Council shall apply by petition to the court whose
decree is complained of.

3. Every petition shall state the grounds of appeal

able doubt whether the Crown had reserved the power to grant leave
to appeal in criminal cases coming from the Indian courts which had
been established by royal charter. In the case of Ago, Kurboolie
Mahumed v. Reg., 3 Moo. I. A. 164, an appeal in a criminal case on the
ground of misdirection was allowred ; but in the Queen v. Eduljee
Byramjee it was held that the Crown had by the terms of the Charter
of 1823 (granted by virtue of 4 Geo. IV. c. 71), parted with its pre-
rogative in criminal appeals in Bombay. The correctness of this
decision, however, has been questioned, and the better opinion is that
it would not be followed. In Gushing v. Dupuy, 5 A. C. 409, where it
was declared that a provincial legislature cannot derogate from the
prerogative of the Crown to allow appeals as an act of grace, the case
of The Queen v. Eduljee Byramjee was quoted in argument ; but the
principle established by the judgment is that the prerogative can only
be taken away or cut down by express words and not by inference.
Nevertheless, the Judicial Committee is very loth to grant leave to
appeal from anv criminal conviction by an Indian Court. Cf. Re
Rajendro Nath Mukerji, L. R. 26 I. A. 242, and Re Macrea, L. R. 20
I. A. 90.

A criminal appeal as of right is admissible only from a judgment of
the High Court in its original criminal jurisdiction, or on a point of
law reserved for the High Court where the High Court declares it fit
for appeal. The High Court, in determining what case is fit for appeal,
follows the decisions of the Judicial Committee. Reg. v. Pestanji
Diusha, 10 Bomb. H. C. p. 92. A point of law was reserved for the
Sovereign in Council in Yusufud Din v. The Queen (Punjab, 1897),
76 L. T. 813, and misdirection was alleged in Gangadhar Tilak v. The
Queen, L. R. 25 LA. 1.

Divorce appeals. — As to appeals in matrimonial jurisdiction, Act 4
of 1869, s. 56, provides that any person may appeal to His Majesty
in Council from any decree (other than a decree nisi) or order under
this Act of the High Court made on appeal or otherwise, and from
any decree (other than a decree nisi) or order made in the exercise of
original jurisdiction b}^ judges of the High Court or of any Division
Court, from which an appeal shall not lie to the High Court, where
the High Court declares that the case is a fit one for appeal to His
Majesty in Council.

Admiralty and Prize Court appeals are treated later. See Part III. ,
p. 370.

(/) For meaning of " final order," see above, p. 150.

RULES OF APPEAL FOR INDIA.

157

and pray for a certificate (#), either that, as regards
amount or value and nature, the case fulfils the

(g) The certificate is to appear upon the proceedings, and is to be The certifi-
conclusive. The certificate is required, by Order in Council, 1838, s. 2, cate.
to be given in all cases in which any of the Indian courts admit an
appeal to the Sovereign in Council. If the certificate as to the amount
or value, given by the court appealedfrom is not borne out by the facts,
the Judicial Committee will not be bound by it. In a case where it was
certified, " That as regards the nature of the case, it fulfils the require-
ments of sect. 596 of Act No. 14 of 1882" (now s. 110), after the
hearing of the appeal had proceeded for some time, the Judicial Com-
mittee ascertained that the amount in question was little more than
4,000 rupees. The court below had not been asked to certify and had
not certified that, although as regards amount or value and nature the
case did not fulfil the requirements of sect. 596, yet that it was " other-
wise a fit one for appeal." " To certify that a case is of that kind,"
said Lord Hobhouse, in delivering the judgment of the Judicial Com-
mittee, " though it is left entirely in the discretion of the court, is a
judicial process which could not be performed without special exercise
of that discretion, evinced by the fitting certificate." Banarsi Par shad
v. Kashi Krishu Narain (Ex parte) (Allahabad), (1900) 28 I. A. 11.
The mere assent of the respondent cannot give the appellant a right
of appeal which the Code does not allow, or sustain a certificate
which is erroneous. Ibid. And cf. Radha Krishu Das v. Rai Krishu
Chand, 1901 (P. C. Archives, 18th June).

In granting a certificate for leave to appeal from concurrent Certificate
findings of fact, the High Court must show what point of law is raised that sub-
by the appeal. stantial point

It was held in Rajah Tasedduq Rasul Khan v. Manik Chand, 30 I. A. Of law is
p. 35, that the word decision means merely the decision of the trial by raised,
the court, and cannot be taken, like the word judgment, to mean the
statement of the grounds on which the court proceeds to make the
decree. If the Appellate Court affirms the decree, it is taken also to
affirm the decision, and there must be some substantial question of
law to justify a certificate for leave to appeal further to the Privy
council. Where the decree of the Appellate Court was that the
appeal be dismissed, but the court granted a certificate for leave to
appeal on the ground that it had not affirmed the court below, it was
held that the certificate was invalid. But the certificate was held to
be defective solely because the judge had placed a wrong meaning
on " decision," and, in a later case, a certificate of appeal given pur-
suant to sects. 595 and 600 of the Civil Procedure Code (now s. 109
and rule 3 above), that the case is a fit one for appeal, was held to be
valid. Webb v. Macpherscm, 30 I. A. 238.

The respondent may show cause why a certificate of leave to appeal Showing
should not be granted by the court. If he desires to do so, he should cause against
give notice to the applicant in the following form : grant of

Take notice that has applied to this court for a certifi- certificate,

cate that as regards amount or value and nature the above case
f ulfils the requirements of sect. 1 10 of the Code of Civil Procedure,
1908, and that it is otherwise a fit one for appeal to His Majesty
in Council.

The day of ,19 , is fixed for you to show

cause why the court should not grant the certificate asked for.

Given under my hand and the seal of the court this day

158

THE PRACTICE OF THE PRIVY COUNCIL.

Consolidation
of suits.

Objection to
grant of
certificate.

Effect of
refusal of
certificate.

requirements of sect. 110, or that it is otherwise a
fit one for appeal to His Majesty in Council.

Upon receipt of such petition, the court shall direct
notice to be served upon the opposite party to show
cause why the said certificate should not be granted.

4. " For the purposes of pecuniary valuation, suits
involving substantially the same questions for deter-
mination and decided by the same judgment may
be consolidated; but suits decided by separate judg-
ments shall not be consolidated notwithstanding that
they involve substantially the same questions for
determination."

Of. Denaran Singh v. Guni Singh, I. L. R. 34 Calc, 401,
where leave to appeal was granted in a number of cases which
had been tried together, that were all dependent on the
same subject, though the value of each suit was below 10,000
rupees, but taken in the aggregate the amounts in dispute
were over that sum. For consolidation of separate judg-
ments for purposes of appeal under the Statute (12 Geo. III.
c. 70, s. 21), see Moofti Mohummed Ubdsoleh v. Mootechund,
1 Suth. P. C. 156.

5. In the event of any dispute arising between the
parties as to the amount or value of the subject-matter
of the suit in the court of first instance, or as to the
amount or value of the subject-matter in dispute on
the appeal to His Majesty in Council, the court to which
a petition for a certificate is made under rule 2 may, if
it thinks fit, refer such dispute for report to the court
of first instance, which last-mentioned court shall
proceed to determine such amount or order and shall
return its report, together with the evidence, to the
court by which the reference was made.

6. If such certificate is refused, the petition shall be
dismissed.

In the event of a refusal, the petitioner may nevertheless
apply to His Majesty in Council for special leave to appeal.
The petitioner should state in detail the facts and specifically

RULES OF APPEAL FOR INDIA. 159

show the legal grounds of objection. See Goree Monee Dossee
v. Juggut Indro Xaraln, 11 Moo. I. A. 1.

7. When the certificate is granted, the applicant Procedure on
shall, either six months from the date of the decree Certificate,
complained of, or within six weeks from the grant of
the certificate, whichever is the later date (h) :

(a) Furnish security for the costs of the respon-

dent ; (i) and

(b) Deposit the amount required to defray the

expense of translating, transcribing, indexing,
and transmitting to His Majesty in Council a
correct copy of the whole record (A;) of the suit,
except :

(1) Formal documents directed to be ex-
cluded by any Order of His Majesty in Council
in force for the time being ;

(h) The period mentioned in this section (unlike that in the Order
in Council of 1838) is directory only, and may be enlarged for cogent
reason. Burjore v. Bhagana, L. R. 11 I. A. 7 (1883) 10 Calc. 557 ;
Fazul-un-nissa Begam v. Mulo, 6 All. 250 (1884) ; Kangasayi v.
Mahalashmamma (1890), 14 Mad. 391. It would seem that application
should be made to the court below to enlarge the time. Mussumat
Shy am Komadi v. Rajah Rameuwar Singh, P. C. Arch. 26th May, 1900.

There is no appeal from the grant of a certificate (Luft All Khan
v. Asaur Reza, 17 Calc. 455), nor from refusal to extend time.
Kishen Pershad Panday v. Tiluckdhari Loll, 18 Calc. 182 (1890).

(i) The amount is estimated, and the balance, if any, remaining
after defraying the costs is refunded. Translation is a necessary part
of the costs of appeal to the Sovereign in Council. Ram Coomar
Ghose, v. Prusunno Coomar Sannyal, 10 Calc. 106.

(k) In Sri Rajah Row Venkata Surya, etc. v. The Court of Wards
(August 3, 1897, P. C. Arch.), the Judicial Committee directed the
Registrar of the Madras High Court to transmit only so much of the
original record as properly bore upon, and might be material for, the
decision of the questions of law which were decided by the High
Court, and which formed the subject of the appeal. The petition
showed that the record was of enormous bulk, and that the cost of
transmitting the whole of it would be so great that it would prove a
denial of justice and would be absolutely thrown away. See further
as to record, Order in Council, 1908, p. 267 ff.

The High Court at Calcutta has invariably applied this rule also
to cases where special leave to appeal has been granted by the Privy
Council The High Court has power to extend the term for depositing
the estimated cost of translating, etc., but it ought not to do so with-
out adequate reason. Jotindra Nath Choivdhrey v. Prasanna Kumar
Bahadur C. W. N. 1104. Where there had been reckless extravagance
in printing the record, their lordships directed that only the costs of
two volumes should be allowed, limited to what was fair and reason-
able. Venkayyamma Garu v. Venkataramannayyamma, 29 I. A. 106.

160

THE PRACTICE OF THE PRIVY COUNCIL.

Revocation
of acceptance
of security.

(2) Papers which the parties agree to
exclude ;

(3) Accounts, or portions of accounts, which
the officer empowered by the court for that
purpose considers unnecessary, and which the
parties have not specifically asked to be in-
cluded ; and

(4) Such other documents as the High Court
may direct to be excluded :

(2) When the applicant prefers to print in India (m)
the copy of the record, except as aforesaid, he shall
also, within the time mentioned in sub-rule (1), deposit
the amount required to defray the expense of printing
such copy.

8. Where such security has been furnished and
deposit made to the satisfaction of the court, the court
shall :

(a) Declare the appeal admitted ;

(b) Give notice thereof to the respondent ;

seal of the court a correct copy of the said
record except as aforesaid ; and

(d) Give to either party one or more authenticated

copies of any of the papers in the suit on his
applying therefor and paying the reasonable
expenses incurred in preparing them.

9. At any time before the admission of the appeal (n),

Printing of
transcript.

(m) For further directions as to the transcript, see the Judicial
Committee Rules of 1908, pp. 267 £E. The record is generally printed
in India ; otherwise, unless the appellant, within four months of the
arrival of the transcript at the Privy Council Office, applies to have it
printed, or takes some step the appeal may be dismissed without
further order.

(n) Until the petition of appeal is lodged (which is the first step
before the Judicial Committee (see pp. 278 — 279), the Judicial Com-
mittee have no jurisdiction to entertain any application in any appeal.
Gungadhur Seal v. Sreemutty Raddamoney, 9 Moo. I. A. 411 ; cf. the
provision of rule 1 1 as to stay of appeal until Order of His Majesty
in Council, which contemplates an application " in the matter of an
appeal."

RULES OF APPEAL FOR INDIA. 161

the court may, upon cause shown, revoke the accep-
tance of any such security, and make further directions
thereon.

10. Where at any time after the admission of the Power to
appeal, but before the transmission of the copy of the J^S^*
record, except as aforesaid, to His Majesty in Council, payment.
such security appears inadequate, or further pay-

ment is required for the purpose of translating, tran-
scribing, printing (o), indexing, or transmitting the
copy of the record, except as aforesaid, the court may
order the appellant to furnish, within a time to be
fixed by the court, other and sufficient security, or to
make, within the like time, the required payment.

11. Where the appellant fails to comply with such Effect of
order, the proceedings shall be stayed, and the appeal wmpij with

shall not proceed without an Order in this behalf of order-
His Majesty in Council, and in the meantime exe-
cution of the decree appealed against shall not be
stayed (p).

12. When the copy of the record, except as afore- Refund of
said, has been transmitted (q) to His Majesty in deposit!^
Council, the appellant may obtain a refund of the
balance (if any) of the amount which he has deposited

under rule 7.

13. — (1) Notwithstanding the grant of a certificate Powers of

- court pending
(o) As to printing the record abroad or in England, see Judicial aPPeal-
mmittee Rules, infra, Chap. IX. Where the record is to be

printed in England, if effectual steps are not taken by the appellant,

Committee Rules, infra, Chap. IX. Where the record is to be

al steps a
the appeal will stand dismissed. As to the form and type to be used

in printing records, see infra, p. 268.

(p) Although the appeal is admitted, there is no stay of execution
unless expressly ordered under rule 13.

" Proceedings," i.e., proceedings in the appeal.

" In the meantime " refers to the period between the failure to
comply and the Order of His Majesty in Council allowing the appeal to
proceed.

(g) Within four months of the arrival, the appellant must apply to
have the record printed and engage to pay the cost (where the printing
has not been done in India), otherwise the appeal will stand dismissed.
(Judicial Committee Rules, p. 274.) Within twelve months of the
arrival of the record, the appellant must take effectual steps to set
down the appeal for hearing (ibid., see p. 294) ; otherwise the
respondent may move to dismiss for want of prosecution.

r.u. 11

162 THE PRACTICE OF THE PRIVY COUNCIL.

for the admission of any appeal, the decree appealed
from shall be unconditionally executed, unless the court
otherwise directs.

(2) The court may, if it thinks fit, on special cause
shown by any party interested in the suit, or other-
wise appearing to the court : —

(a) Impound any movable property in dispute or

any part thereof ; or

(b) Allow the decree appealed from to be executed,

taking such security from the respondent as
the court thinks fit for the due performance (r)
of any Order which His Majesty in Council
may make on the appeal ; or

taking such security from the appellant as
the court thinks fit for the due performance
of the decree appealed from, or any Order
which His Majesty in Council may make on
the appeal ; or

(r) Where upon an application to stay execution the judges in
India had differed in opinion, the Judicial Committee ordered a stay.
Chutraput Singh Door go, v. Dwarkanath Ghose and Another, L. R. 12
I. A. 170 (1894), staying execution in India.

The court in India from which the appeal is brought now has power
to order a stay of execution where special leave to appeal has been
obtained from the Judicial Committee. Under the old rule by which
the court admitting the appeal only has such power, it was held that
the High Court could not order a stay. Cf . Mohesh Chandra Dhal v.
Gatrughna Dhal, (1899) L. R. 26, 1. A. 281. But in a petition brought
under the new rules, where special leave to appeal was granted by
the Judicial Committee, and a petition was subsequently presented to
them for an order that execution should be stayed in India, the High
Court being in doubt whether it had power to order a stay in the
circumstances, the Committee held that the High Court had such
power. It was said by Lord Macnaghten that the High Court was in
a better position than the Board to determine whether execution
should be stayed, and if so on what terms. Srimati Nityumasi
Dari v. Madhu Sudar Sen, (1911) 38 I. A. 73.

An application for a stay of execution cannot be granted before
an appeal to the Privy Council is finally admitted. Jurag Kumari v.
Gopi Chand Bothra, 5 C. W. N. 562.

Application for a stay should always be made in the first instance
to the court in India which has power to deal with the matter accord-
ing to the circumstances, and has knowledge of details which the
Judicial Committee cannot possess on an interlocutory application.
Where the High Court thought that a stay should be granted but that

RULES OF APPEAL FOR INDIA. 163

(d) Place any party seeking the assistance of the
court under such conditions, or give such
other direction respecting the subject-matter
of the appeal, as it thinks fit, by the appoint-
ment of a receiver or otherwise.

14. — (1) Where, at any time during the pendency increase of
of the appeal, the security furnished by either party found*7
appears inadequate, the court may, on the application inadequate.
of the other party, require further security.

(2) In default of such further security being fur-
nished as required by the court : —

(a) If the original security was furnished by the

appellant, the court may, on the application
of the respondent, execute the decree appealed
from as if the appellant had furnished no
such security ;

(b) If the original security was furnished by the

respondent, the court shall, so far as may be
practicable, stay the further execution of the
decree, and restore the parties to the position
in which they respectively were when the
security which appears inadequate was fur-
nished, or give such direction respecting the
subject-matter of the appeal as it thinks fit.

15. — (1) Whoever desires to enforce or to obtain Procedure
execution of any Order of His Majesty in Council shall

apply by petition (t), accompanied by a certified the King in
copy (u) of the decree passed or order made in appeal

they had no power to allow it, the Judicial Committee allowed a stay
on terms. Vasudeva Modehai v. Sadagopi Modehai, (1906) 33 I. A.
132.

(t) " Apply by 'petition " within twelve years. See Act 9 of 1908, Execution of
Sched. I. (Limitation Act). The Order of His Majesty affirming Sovereign's
a decree becomes the paramount decision. Luchmun Persad Singh v. Order,
Kishem Persad Singh, 8 Calc. 218 (1882). An Order of His Majesty
amounts to a direction to the court below to clothe that declaration
in the proper form of a mandatory order, and to give effect to such
order. Barlow v. Orde, 2 Suth. W. R. 669 (1872).

(u) " Certified copy." The terms of the recommendation of the
Judicial Committee in their judgment are not sufficient ; the formal
Order of His Majesty is necessary. Juggernath Sahoo v. Judoo Soy

11—2

164

THE PRACTICE OF THE PRIVY COUNCIL.

Directions as
to execution
of the King's
Order.

Appeal
against order
relating to
execution.

and sought to be executed, to the court from which
the appeal to His Majesty was preferred.

(2) Such court shall transmit the Order of His
Majesty in Council to the court which passed the first
decree appealed from, or to such other court as His
Majesty in Council by such Order may direct, and
shall (upon the application of either party) give such
directions as may be required (x) for the execution of
the same ; and the court to which the said Order is so
transmitted shall enforce or execute it accordingly, in
the manner and according to the provisions applicable
to the execution of its original decrees.

When any moneys expressed to be payable in
British currency are payable in India under such order,
the amount so payable shall be estimated according
to the rate of exchange for the time being (y) fixed at
the date of the making of the order by the Secretary
of State for India in Council, with the concurrence of
the Lords Commissioners of His Majesty's Treasury,
for the adjustment of financial transactions between
the Imperial and the Indian Governments.

16. The orders made by the court (z) which enforces
or executes the Order of His Majesty in Council,
relating to such execution, shall be appealable in the
same manner and subject to the same rules as the

Singh, 5 Calc. (1879), at 330. This section is directory only. Hurrish
Chunder Chowdry v. Kali Sundari Debia, L. R. 10 I. A. 4 (1882).

A refusal by a judge to issue execution is appealable to the High
Court. Ibid.

Directions as (x) " Give such directions" Such an order may amount to a judg-

to execution, ment from which an appeal under sect. 39 of Letters Patent, 1865,

would lie. An Order of the Privy Council for possession of lands was

Mesne profits, held to carry mesne profits. Rajah Lelanund Singh v. Luckmissur

Singh, 13 Moo. I. A. 490 (1870). And where the decree of the court

below was affirmed by the Order of the Sovereign in Council, it was

held that mesne profits were recoverable up to the date of such order ;

and for a further period not exceeding three years until recovery of

possession. Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh.

L. R. 27 I. A. 209 (1900).

(y) See Par am Sukh v. Ram Dayal, 8 All. (1886) 650,
(z) This is the court which made the first decree appealed from, or
such other court as His Majesty directs.

RULES OF APPEAL FOR INDIA. 165

order of such court relating to the execution of its
own decrees.

EULES as to Appeals made under the Code of Civil
Procedure by the Indian High Court.

BOMBAY.

Rules regarding the admission of Appeals to His Majesty in
Council from decrees passed on the Appellate Side of
the High Court.

1. Within the period prescribed by law, the appellant Security foi
shall ordinarily find security for the payment of costs to the costs-
extent of Rs. 4,000, and may either deposit cash or Govern-
ment securities to that amount, or may give as security
immovable property, or enter into a recognizance with two
sureties, to be approved of by the High Court. If he in-
tends to give immovable property as security, he shall file
a mortgage-bond duly registered ; and, in order that
the security may be tested, the parties thereto shall
specify distinctly the origin and ground of their title.
Provided that if on inquiry such security appears to be
insufficient, the appellant may be called upon to deposit
Rs. 4,000 in cash, or in Government securities, within six
weeks from the date of the service upon him of such order.
In cases of special magnitude and importance the court
will, if necessary, require security for costs of appeal to a
larger amount, but in no case exceeding Rs. 10,000.

2. The appellant shall also, within the prescribed period, Deposit for
deposit in court, towards defraying the fees and expenses to

be incurred in preparing the transcript record, the sum of
Rs. 2,000.

3. In all criminal and civil cases, the entire record, Translation
exclusive of all merely formal documents, will, with the
exceptions hereinafter noted, be transcribed. On application

being granted in a civil case the registrar or other proper
officer of the court shall serve upon the parties notices
calling upon them to specify within a certain time not

166 THE PRACTICE OF THE PRIVY COUNCIL.

exceeding one month, what accounts attach to the record
they consider to be necessary evidence in the appeal. And
it shall be in the discretion of the said officer to omit from
the transcript any accounts which have not within the time
specified been expressly asked for by the parties. If either
party shall expressly ask for translations of any accounts,
the circumstance shall be noted in the transcript. Further,
with a view to reducing in civil cases the bulk of the papers
transmitted, a list of the papers which make up the record
of the case will be furnished to the parties, as soon as
possible after the grant of certificate ; and it will be com-
petent to either party, within one month of his receiving
such list, to indicate any documents which he considers im-
material to any question to be determined upon the appeal.
If the parties are agreed as to the documents to be omitted,
such documents will not be translated or transcribed, but in
the case of the parties differing as to the proposed omissions,
the matter may be brought before the court for determina-
tion. If either party expressly requests that a document
held by the registrar or other proper officer to be merely
formal may be translated and transcribed, such document
shall be translated and transcribed and appended to the
transcript record, the circumstance being noted on the
document itself.

4. Within two weeks after the date of any final notifica-
tion to the registrar, or other proper officer, specifying the
papers to be translated, the chief translator or other proper
officer shall certify by estimate whether the deposit made by
the appellant will be sufficient to cover the expense with a
margin of Us. 300 ; and, if not, what farther deposit will
be necessary. The registrar, or other proper officer, will
notify the amount of the further deposit to the appellant,
who will be required to deposit this further amount within
one month of the service of notice upon him. When the
actual cost of the transcript has been ascertained, the
balance, if any, of the amount deposited will be returned to
the appellant.

5. If the appellant shall fail within the time prescribed to
furnish security for costs of appeal, or to deposit the amount
required for the preparation of the transcript record in
accordance with rules 1, 2 and 4, the proceedings shall be

RULES OF APPEAL FOR INDIA. 167

stayed, and the appeal shall not proceed without an Order
in this behalf of His Majesty in Council.

6. The translations of documents required for the tran- Fees for
script record in appeals to His Majesty in Council will be trans tlon<
mads by the court's translators, or by such other persons as
the honourable the Chief Justice may from to time appoint
in that behalf. The parties on each side will be invited
from time to time to inspect such translations, and in cases
of disagreement, the points in dispute, which must be stated
in writing, will be submitted to the chief translator, who
shall decide. The translations thus made shall be examined
and authenticated by the chief translator, or such other
person as the honourable the Chief Justice may from time
to time appoint in that behalf, and will be filed with the
record of the case. A fee of R. 1 per folio will be] levied
on account of translation ; R. J per folio on account of
examination and authentication ; and 2 annas per folio on
account of transcription.

CALCUTTA (a).

I. Matters connected with appeals to His Majesty in Time for
Council shall ordinarily be heard at such time as the applications.
Divisional Bench appointed to deal with such matters

shall fix.

II. Applications (1) for an order to transmit Orders in Exparte
Council for execution to the lower courts, where no special applications,
directions are required ; (2) transmit securities to the

Mofussil Courts for investigation as to their sufficiency ; and
(3) for refunds of surplus deposits made for the purpose of
preparing translations, manuscripts, etc., may, under ordin-
ary circumstances, be made without notice to the opposite
party. A separate list will be made of such applications,
and they will be called on at the sitting of the court, when
the court will determine whether notice must be given.

III. In all other applications notice is necessary. On notice.

IV. In all cases in which it is necessary that notice to any Form of
party shall issue, such notice shall be given by delivering to notice-

(a) Col. Gazette, Pt. I., May 20, 1891 ; Procedure and Practice,
Chap. IV., Appeals to Privy Council.

168

THE PRACTICE OF THE PRIVY COUNCIL.

Service of
notices,

the proper person a copy of this petition, together with a
notice in the following form :

Take notice that this application will be made in
court on the day of 18 , at o'clock in the
forenoon, when you are required to attend and show
cause against the application if you are desirous to do so.
Y. A notice which it is necessary to serve under these
rules or under sect. 600 of the Code of Civil Procedure, (ft)
may be served in the manner provided by the Code of Civil
Procedure for the service of notices, or upon a vakeel who
appeared for the party to whom notice is to be given in the
appeal to this court, unless the vakalutnama of such vakeel
has been cancelled with the sanction of the court. If there
is no vakeel upon whom notice can be served, then unless the
Divisional Bench shall otherwise direct, the notice must be
served upon the party in Calcutta through the sheriff, or in
the Mofussil through the court, on paying the usual fee.
Such payment to be made by stamp affixed to the notice
intended to be served. Notices intended to be served by
the sheriff or in the Mofussil, will be signed by a judge if left
with the clerk in charge of the department for that purpose.
VI. If the notice is to be served in Calcutta, it shall be
served twenty-four hours before the sitting of the court at
which the application is to be made : if it is to be served in
the Mofussil, then the time is to be regulated by the time
table prescribed in Rule XV., Chap. XVIII.

Setting down. VII. All applications of which notice has been given to
the clerk in charge of the department will be set down in a
list in the order in which they are notified to him. The
cases in the list will be called on peremptorily in their turn ;
and.if by the fault of the applicant, the application cannot
be proceeded with, it will be liable to be dismissed.

VIII. With the petition to be presented under sect. 598 (c)
of the Code of Civil Procedure, the party desirous to appeal
shall file an application, accompanied by a fee of Rs. 16, to
the Clerk of Privy Council Appeals to prepare an estimate
of the expense of translating, transcribing or printing, and
forwarding to the Registrar of the Privy Council the record
of the case.

Time for
service.

Filing peti-
tion and
application
for estimate.

(&) Now rule 3 of Order XLV., see p. 158.
(c) Now rule 2 of Order XLV.

RULES OF APPEAL FOR INDIA.

169

IX. Such estimate shall be prepared with as little delay Preparation
as possible, and ordinarily only on the paper book of the °

appeal as heard by the Division Bench in the particular
case :

Provided that it shall be competent to the Division Bench
to require the applicant to state within a prescribed period
what papers he may desire to have translated or transcribed
for the purposes of his appeal, if admitted, and to pass orders
accordingly.

X. The application for estimate shall state whether or not Printing,
the record is to be printed in India.

XI. The applicant may, at the next sitting of the court,
object to such estimate ; but such objection is not to delay
the making of the deposit, except by leave of the court.

XII. All documents which are to be included in the
transcript for the Privy Council, if not originally in English,
shall be translated into that language, and all translations
made or used shall be revised and certified by the sworn
examiner.

XIII. An index of all the documents included in the tran-
script shall be prepared and annexed to the record in the
following form, and shall be followed by a list of all other
papers, documents and exhibits in the cause not included in
the transcript ; the draft of this index and list shall be
furnished to the parties, who shall be at liberty to object
thereto within three weeks from the date of receipt.

Objection to
estimate.

Translation
of transcript.

Index of
documents.

Number
on
Record.

Mark (if any)
in the court
below.

Description
and date of
paper.

Whether the whole,
portion, and (in case of
a portion) what por-
tion to be inserted in
the transcript.

Page of tran-
script (to be
filled in after).

•

XIV. Any of the parties to the suit may, within three Adding to
weeks from the receipt of the draft of the index and list documents mi
referred to in the preceding rule, apply to the Division from the
Bench for an order that any paper on the record, not already transcr]Pt-

170 THE PRACTICE OF THE PRIVY COUNCIL.

included in such index and list, may be added to, or, if
already included, may be excluded from, the transcript under
preparation for the Privy Council. Any cost incurred on
such account shall be borne in such manner as the Division
Bench may direct, provided that no such application shall
be heard except after notice to the opposite party.
Order of XV. In the index and transcript the papers shall be placed

frSTSpt. m the following order:
Plaint.

Written statements.

Examination of parties, or their agents, etc.
Injunctions.
Orders of attachment, etc., (if any) obtained before

judgment.

Issues found (if any).
Exhibits of plaintiff.
Depositions of witnesses for plaintiff.
Exhibits of defendant.
Depositions of witnesses for defendant.
Report of commission (if any), with maps, depositions,

etc. annexed.
Judgment and decree.
Memorandum of appeal.
Cross-appeal or memorandum of objections under sect.

348 (if any).

Proceedings in Appellate Court (if any).
Judgment and decree of that court.
Petition of appeal to Privy Council, affidavits, etc.
Appendix (if any).

List of papers omitted under clause 2 of His Majesty's
Order in Council, and under clause 6 of sect. 602
of the Code of Civil Procedure.

Charges. The following charges shall be payable in respect of the
matters specified :

Es. a. p.

Estimate of costs 16 0 0

Translation of vernacular portion of record,

per 1,000 words 6 10 8

Examination of ditto ditto 354

Copying English portion of record, for

every 1,440 words or part thereof 100

RULES OF APPEAL FOR INDIA. 171

Rs. a. p.
Examining English portion of record, for

every 1,440 words, etc 0 8 0

Transcribing (one copy) per folio of 72

words 020

(Or at the option of appellant.)

Printing (55 copies) per printed page Rs. 2 to 3 0 0
Examination of transcript record, for every

72 words or part thereof 010

Examination of proofs, for every 750 words 100
Certifying two copies of printed record, for

every 10 printed or manuscript pages,

or part of 10 pages 100

Preparation of index, for every 1 6 papers or

part of 16 papers 100

The above rates will be subject to alteration.

XVI. The estimate shall include the matters referred to Appellant
in the preceding rule and be framed in accordance with the incurs cost-
charges above specified, and any appellant who has filed his
petition of appeal shall be deemed to have incurred the

charge for the preparation of an index and estimate, whether
the appeal be admitted or not.

XVII. In all cases the security oifered under sects. 602, Nature of
605 and 609 of the Code of Civil Procedure (z) shall consist security-
either of cash, or Government securities, or immovable
property, and in the latter case the party finding the security

shall file a mortgage bond duly registered, together with a
specification of the title to the property.

XVIII. When such bond has been filed, the court shall, Testing
if the property be situate in Calcutta, direct the security to security,
be tested by the registrar on the original side ; if in the
Mofussil, by the judge of the district in which the immov-
able property offered as security is situate.

XIX. Upon the arrival of any report as to the sufficiency Objecting to
of any security, the clerk in charge of the department will sufficiency.
enter the case in the list of business of the Division Bench,
specifying the nature of the case. All parties desirous of
objecting thereto, shall, within six days of the case being

inserted in such list, file a notice specifying their objections,

(z) Now rules 7, 10 and 14 of Order XLV. See above.

172

THE PRACTICE OF THE PRIVY COUNCIL.

Where

security

insufficient.

Court closed.

Next friend
or guardian of
infants, etc,

Appointment
of next
friend, etc.

Certificate to

successful

appellant.

Petition for
certificate.

and serve a copy of such notice upon the other parties to the
appeal. All such objections will be disposed of at the next
sitting but one after the arrival of the report.

XX. If the security tendered be found insufficient, the
appellant shall be bound, within six weeks of the date of
such finding, to deposit cash or Government secureties to
the extent of Us. 4,000, or to such amount as will bring up
the value of the security to Rs. 4,000.

XXI. In case the last day for making the deposit or
giving the security under sects. 602, 605, and 609 (aa) of the
Code of Civil Procedure shall fall on a day upon which the
court is closed, the deposit may be made, or the security
given, upon the first day upon which the court re-opens.

XXII. All applications by or on behalf of an infant or a
person of unsound mind shall be made in the name of the
infant or person of unsound mind by the person whose name
is on the record as his next friend or his guardian ; and
whenever any application is consented to or opposed by an
infant or person of unsound mind, the infant or person
of unsound mind shall in like manner be represented
by the person who appears in the record as his next friend or
guardian.

XXIII. In case there is no next friend or guardian upon
the record, a separate application for appointment of a next
friend or guardian must be made.

XXIV. When a party who has been successful in an
appeal to His Majesty in Council applies for a certificate of
the costs incurred in the appeal in this court the deputy
registrar shall, upon production of the Order of His Majesty
in Council for the payment of such costs and without
reference to the court, prepare such certificate and place it on
the record of the Privy Council appeal.

A copy of the certificate will then be taken by the party
in the usual way.

MADRAS (b).

I. Any person wishing to appeal to His Majesty in Council,
must apply by petition to the High Court for the certificate

(aa) See note (2), p. 171.

(6) Fort St. George Gazette, Pt. 2, p. 460, November 28, 1876.
Rules of High Court of Judicature of Madras (passed November 20,
1876).

RULES OF APPEAL FOR INDIA. 173

prescribed in sect. 9 (r), and must set out in the petition the
grounds of appeal to His Majesty in Council.

II. On such a petition being filed, a day shall be fixed by Notice of
the registrar for the hearing of the petition, and notice Petltlon-
thereof shall (unless otherwise ordered) be given to the
opposite party.

III. If the court grants the certificate, a certificate in the Form of
form hereinafter annexed shall be drawn up.

IV. The sum to be deposited under clause (a), sect. 11 (cc), Amount of
of the Act as security for the costs of the respondent shall,

unless otherwise ordered, be Rs. 4,000. The deposit shall
ordinarily be made in the form of Government securities.
The security to be deposited under sects. 14 and 18 (f) shall
be such further sums as shall in the circumstances of the
case appear to the court to be adequate. The interest on the
deposits shall be disbursed to the depositor as it falls due or
allowed to accumulate, at his option.

V. When the security offered consists of immovable Security on
property, the appellant shall file a mortgage bond duly
registered, together with a specification of the surety's title.

When such bond has been filed, the court shall direct the
security to be tested, either by the registrar, or by the judge
of the District Court in which the immovable property
pledged is situated. If the security shall be found in-
sufficient, the appellant shall be bound, within six weeks
from the date of an order to that effect, to deposit cash or
Government securities to the amount of Rs. 4,000, or to
such amount as may raise the value of such security to
Rs. 4,000.

But in any special case the court may, if it think fit, on Limit of
the application of the respondent, require security to a larger s
amount ; in no case, however, exceeding Rs. 10,000.

VI. It shall be competent to the court at any time before Revocation of
the admission of the appeal, upon cause shown, to revoke the a
acceptance of any security, and to make further directions

thereon.

(c) That is, sect. 9 of the Privy Council Appeals Act (Act 6 of
1874), which became Chapter 45 of the 1882 Code of Civil Procedure
(sects. 594—616), and Chapter 7 of the Act of 1908. .See Order
XLV., r. 3, supra, p. 156.

(cc) See rule 7, p. 159, and rule 14, p. 163.

174

THE PRACTICE OF THE PRIVY COUNCIL.

Deposit for
record.

Certificate as
to security.

Petition to
admit appeal.

Order
thereon,

Further secu-
rity before
transmission
of record.

Transmission
of record.

Printed
copies.

VII. A sum of Rs. 500 (to be afterwards increased if
necessary) shall be deposited to meet the expenses of prepar-
ing the record.

VIII. When the security has been given, and the expense
of preparing the record deposited, a certificate shall be
granted in the form hereinafter annexed, and the preparation
of the record shall proceed under the orders of the registrar.

IX. Any time after the deposit of the security and
expenses of preparing the record, the petitioner shall be at
liberty to apply to the court by petition to declare his
appeal admitted.

X. On the admission of the appeal, an order in the form
hereinafter annexed shall be drawn up, and notice thereof
given to the respondent.

XI. If, at any time after the admission of the appeal, but
before the transmission of the record to England, it shall be
shown to the satisfaction of the court that the security
given by the appellant is insufficient, or it shall appear to
the court that further payment is required for the purposes
of the transcript, the court may call on the appellant to
furnish other and sufficient security, or to make the required
payment within a time to be limited, and if the appellant
fail to comply with such order, the proceedings may be
stayed, and the appeal shall not proceed without an order of
the Judicial Committee, and in the meantime execution of
the decree of the High Court shall not be stayed.

XII. Upon the registrar being satisfied that the notice in
Rule X. has been duly served, the record may be completed
and transmitted to England.

XIII. If the record is printed by the High Court, thirty
copies are to be delivered between the parties on each side,
but the whole cost of preparing the record, whether printed
or not, is in all cases to be paid by the appellant.

Form of Certificate.

Certificate Read petition presented under sect. 7 of Act 6 of 1874 (d)y

under rule 3 praying for the grant of a certificate to enable the petitioner

XLV.jThat to appeal to His Majesty in Council against the decree of

the case is fit this court in suit, No. of
for appeal.

(d) Now Act V. of 1908, Order XLV., r. 3.

RULES OP APPEAL FOR INDIA. 175

This petition coming on for hearing : Upon perusing the
petition and the grounds of appeal to His Majesty in Council,
and upon hearing the arguments of for the petitioner,

and of for the counter-petitioner (if he appears), it is

hereby certified that (as regards the value of the subject-
matter or the nature of the questions involved) the case
fulfils the requirements of sect. 5 of Act 6 of 1874 (or
that the case is otherwise than on the grounds stated in
sect. 5 of Act 6 of 1874 a fit one for appeal to His
Majesty in Council).

Certificate that Appellant has given Security for Costs of
Respondent, etc.

I certify that has this day deposited in the office of Certificate

the registrar of the High Court the sum of as security that security

for the costs of the respondent in an appeal sought to be given under
preferred to His Majesty in Council against the decree of ^Gi- 602-
the High Court in suit No. of , and has

deposited the sum of to defray the expenses of tran-

slating, transcribing, indexing, and transmitting to His
Majesty in Council a correct copy of the whole record of
the said suit.

Order Admitting Appeal to His Majesty in Council.

Read petition stating that in accordance with sect. 11 Order under
of Act 6 of 1874 the petitioner has deposited the sum sect. 603
of as security for the costs of the respondent in the appeal appeal^
sought to be preferred by petitioner against the decree of this admitted.
court in suit, No. of , bearing date the

day of , 19 , and that he has also deposited

a further sum of to defray the expense of preparing a

copy of the record to be transmitted to His Majesty in
Council, and praying that under sect. 12 of Act 6 of
1874, the High Court will be pleased to declare his appeal
to His Majesty in Council admitted.

Read also certificate of this court granted under the pro-
visions of sect. 9 of Act 6 of 1874, stating that the case fulfils
the requirements of sect. 5, or is otherwise a fit one for appeal
to His Majesty in Council.

Read also the certificate of the registrar of this court,
dated , stating that on the day of ,19

176 THE PRACTICE OF THE PRIVY COUNCIL.

the petitioner deposited in the office of the registrar a sum
of as security for the costs of the respondent, and that

he did also on the day of deposit with the registrar

the further sum of to defray the expense of translating,
transcribing, indexing, and transmitting to His Majesty in
Council a correct copy of the record of this suit.

This petition coming on for hearing : Upon hearing the
arguments of , and it appearing that petitioner has

fulfilled the requirements of sect. 11 of Act 6 of 1874 in
regard to giving security for the costs of the respondent
and making deposit of the amount required to defray the
expense of preparing a copy of the record for transmission
to His Majesty in Council, this court doth hereby declare
that the appeal of the petitioner to His Majesty in Council
against the decree of this court in suit, No. of

is admitted.

(Signed)

NORTH WEST PROVINCES W

1. The following classes of cases shall ordinarily be heard
and disposed of by a single judge of the court :

(i.) All motions for the admission of appeals from original

and appellate decrees and orders.
* * * * *

Security 224. The security for the costs of the respondent required

unde,E by sect. 602 (e) of the Code of Civil Procedure shall in ordinary

cases amount to Rs. 4,000. Such security shall consist of

cash or of Government securities or of immovable property

or of any or all together, if necessary, to secure the amount.

In the event of the court deeming it proper to call on the

appellant under sect. 605 (e) of the Code of Civil Procedure to

furnish further security, such further security shall consist of

cash or of Government securities or of immovable property, or

of any or all together, if necessary, to secure the amount, but

in no case shall security be required, nor under sect. 605 (e)

shall it be increased, to an amount exceeding Rs. 10,000.

225. The amount of the security to be furnished by the

(d) North West Provinces Rules, N. W. P. and Oudh Gazette,
Pecember 7, 1889, Pt. 11, p. 1844, etc. Dated November 30, 1889.
In force January 1, 1890.

(e) Now rules 7 and 10 of Order XLV.

RULES OF APPEAL FOR INDIA. 177

appellant or respondent under sect. 608 or sect. 609 shall
be such as the court shall deem sufficient, and shall consist
of cash or Government securities or of immovable property.

L'26. When the security offered under sect. 602, sect. 605 (/), immovable
sect. 608, or sect. 609 consists, either in whole or in part of
immovable property, the appellant or respondent, as the
case may be, shall file a bond, duly registered, mortgaging
the property, together with a specification of the title of the
mortgagor.

•2:11. When such bond has been filed, the court shall direct Testing the
the security to be tested, either by the registrar or by the S3cunty-
judge of the court of the district within which the immovable
property mortgaged is situate.

228. When a certificate is granted, the applicant shall Estimate
forthwith apply to the registrar to prepare list A (of papers

to be transmitted to the Registrar of the Privy Council) and
list B. (of formal and other papers not to be so transmitted),
and to make an estimate of the cost of preparing the record
for transmission, and shall state whether the transcript is to
be printed in India or not.

229. On the receipt of the application, together with a fee
of sixteen rupees, the registrar shall prepare or cause to be
prepared the lists before mentioned, and make, or cause to
be made, an estimate of the expense of translating, transcrib-
ing or printing, and of forwarding to the Registrar of the
Privy Council the record of the case, including a margin of
Rs. 200, and shall upon application to him deliver copies
of the lists and estimate to the advocate, attorney or vakel
of the applicant.

230. At any time within two weeks from the delivery of Objections
copies of the list and estimate, the applicant may object to estimate-
thereto, and if the registrar refuse to allow the objection,

the matter shall be at once submitted to a judge or judges
for orders.

231. Ordinarily the whole record shall be printed or
transcribed, with the exception of such documents, papers,
and accounts as are specified in sect. 602, sub-sects. (1), (2),
(3), and (4).

232. All documents not drawn up or written originally Translation.
in the English language, and which have not been translated

(/) Now rules 7, 10, 13, and 14 of Order XLV.
P.C. 12

178

THE PRACTICE OF THE PRIVY COUNCIL.

Index and
list of docu-
ments.

for the use of the court shall be translated into English,
and all translations so made shall be certified by one of the
court translators.

233. An index of all the documents included in the print or
transcript shall be prepared and annexed to the record in
the form subjoined, and shall be followed by a list (B) of all
other papers, documents, and exhibits in the cause not
included in the print or transcript.

Serial number.

Description of document.

Remarks.

Arrangement
of transcript.

Charges.

234. In the index and in the print or transcript the
the f0nowing

Plaint.

Written statements.

Examination of parties or their agents, etc.

Injunction.

Orders of attachment, etc. (if any) obtained before

judgment.

Issues framed (if any).
Exhibits of plaintiff.
Exhibits of defendant.
Report of Commissioner (if any) with maps, disposi-

tions, etc., annexed.
Judgment and decree.
Memorandum of appeal,
Cross appeal or memorandum of objections under

sect. 561 (if any).

Proceedings in Appellate Court (if any).
Judgment and decree of that court.
Petition of appeal to Privy Council, affidavits, etc.
Appendix (if any).

List B of papers omitted under rule 231 of these rules.
235. The following charges shall be estimated for and
payable in respect of the matters specified :

RULES OF APPEAL FOR INDIA. 179

Es. a. p.

Translation of vernacular portion of record,
for 150 or any less number of words
than 150 100

Copying English portion of record for print-
ing, for every 1,440 words or for any
less number of words than 1,440 100

Examining copy of the English portion of
record for printing, for every 1,440 words
or for any less number of words than 1,440 080

Printing, when required by an appellant or
appellants (55 copies) per printed page, not
exceeding 2 4 0

Correction of proof, per full page 0 8 0

Certifying two copies of printed record, for

every 10 pages 1 0 0

Transcribing one copy, when required by an
appellant or appellants, for Privy Council,
for every 800 words or for any less number
of words than 800 080

Preparation of index, for every 1C papers ... 1 0 0

Maps as per estimate to be initialled by the registrar.

Four consecutive figures or, if there be not four consecu-
tive figures, then any less number of consecutive
figures, shall be counted as one word.

In all cases estimates of the charges for maps shall be
initialled by the registrar.

L}:]6. Immediately after the court shall have declared the Lists of
appeal admitted, copies of the lists A and B shall be fur- c
nished to the advocate, vakei or attorney of the respondent,
who may within two weeks of the receipt of the same apply
to the registrar to include in list A any documents, papers,
or accounts which he may consider necessary. Such applica-
tion shall either be allowed by the registrar or be referred by
him for the order of a judge or judges.

237. Every application for the recovery of costs incurred Recovery of
in British India in connection with appeals to His Majesty in costs of
Council shall ordinarily be made to the Bench from whose
order or decree an appeal is presented, and no such applica-
tion shall be entertained except on proof that fourteen days'

12—2

180

THE PRACTICE OF THE PRIVY COUNCIL.

Notice of
despatch of
record.

Where the
Government
is a party.

notice of the intention to make the application, together with
a memorandum of the costs claimed, has been given to the
other party.

288. In all cases appealed to His Majesty in Council notice
of the despatch to England of the records of the cases shall
be given to the parties through their advocate, attorney or
vakel.

239. In cases in which the Government is a party, the
requisite notice will be given to the Government advocate or
Government pleader.

Notices and
their service.

Amount and
nature of
security.

Estimate
of costs.

THE PUNJAB^).

Rules made by the Chief Court of the Punjab under the
powers conferred by sect. 612 (/) of the Code of Civil Pro-
cedure regulating the practice and proceedings of the court
in regard to the admission of appeals to His Majesty's Privy
Council.

I. Notices under sect. 600 or sect. 603 of the Code of Civil
Procedure (g) shall be in the prescribed forms, and shall be
served under the rules in force for the service of ordinary
processes of the chief court.

II. The security for the costs of the respondent referred
to in sects. 602 and 605 (li) of the Code shall ordinarily be to
the amount of Rs. 4,000, and shall consist either of cash or
of Government securities.

. In any special case the chief court may, if it think fit,
upon the application of the respondent, require security to a
larger amount ; in no case, however, exceeding Rs. 10,000.

The security referred to in sects. 608 and 609 of the Code
shall be of such nature and amount as the court may, on the
merits of the case, decide.

III. Upon the application of the appellant, accompanied
by the prescribed fee, an estimate of the amount required to
defray the expense of translating, transcribing, indexing and
transmitting to England the copy of the record of the suit

(e] Rules regulating the preparation of transcript records in appeals
admitted by the Chief Court to His Majesty's Privy Council.
(/) Now sect. 130.
(g) Now rules 3 and 8 of Order XLV.
(h) Now rules 7 and 10 of Order XLV.

RULES OF APPEAL FOR INDIA. 181

shall be prepared under the orders of the registrar, with
reference to the rates for the time being in force, within
fourteen days of such application :

Provided that it shall be at the discretion of the registrar Estimates
to dispense with the estimate, and allow the appellant to may ^e d?8'
deposit such sum on account of expenses as may, under the F
circumstances of the case, seem reasonable.

IV. Within fourteen days of the admission of the appeal, List of
a list of all the papers in the record shall be prepared, under papers,
the orders of the registrar, with a column showing which
papers it is proposed to transcribe and which to omit, the
papers marked for omission being ordinarily those specified
in sect. 602, clause b, (1) and (3) of the Code ; and copies of
this list shall be forwarded to the appellant and respondent.

Y. It shall be competent to either party in the cause, Documents
within fourteen days of the receipt of the list, to indicate omitted by
any documents, besides those marked for omission, which oFpartS.
they wish to exclude.

If the parties concur in the additional omissions proposed,
the documents so indicated will be omitted ; in the event
of the parties differing as to the proposed omissions, the
matter will be laid before a judge of the court, whose decision
will be final.

VI. All documents which are not originally in the English Translation
language, and which have not been translated for the use of docume]Qts-
of the court, shall be translated into English, under the

orders of the registrar, and all the translations made or used
shall be revised and authenticated by the head translator of
the court.

[Note. — For such translation, revision, and authentication,

a time not exceeding four months shall be fixed by the

registrar.]

VII. The translation, revision, and authentication having Transcribing
been completed, the preparation and examination of the of record,
transcript record for despatch to England shall be carried

out under the orders of the registrar, who shall certify under
his hand the correctness of the transcript.

[Note. — For the purpose of this rule a period of two
months shall be allowed.]

VIII. As soon as the transcript record is complete, it shall Chronological
be reduced, as far as possible, to chronological order, and a

182

THE PRACTICE OF THE PRIVY COUNCIL.

Arrangement
may be
other than
chronological.

Analytical
index.

Transmission
of transcript
record to
England
and notice
to parties.

Extension of
period under
the rules.

Court means
a single
judge.

Registrar
may depute
his duties
to another.

complete index of all the papers, documents, and exhibits in
the cause, with a list showing which have been omitted from
the transcript record, shall be prepared under the orders of
the registrar within a period of one month.

IX. It shall be competent to either party to apply that the
papers composing the transcript record may be arranged in
some other order than chronological order.

If both parties agree to the order proposed, and the registrar
approve, the papers shall be so arranged ; and if not, the
question shall be referred to a judge, whose decision shall
be final.

X. Either party may apply that an analytical index be
prepared of the papers composing the transcript record, in
addition to the chronological index referred to in Rule VIII. ;
and if the application be approved by the court, such index
shall be prepared under the orders of the registrar, at the
expense of the appellant.

XI. When the transcript record and index are complete,
the whole shall be transmitted without delay to the registrar
of the Judicial Committee of the Privy Council, and intima-
tion of the despatch shall be given to the appellant and
respondent.

XII. The periods prescribed in Rules III., IV., VI., VII.,
and VIII. for the several stages in the compilation of the
the transcript record may, for sufficient reason, be extended
under orders of the court.

XIII. For all purposes of these rules where the orders
of the court are required, the order of one judge shall be
sufficient.

XIV. The registrar may, under the orders of the court,
depute any of the duties which devolve upon him under
these rules to the deputy registrar or other officer of the
court.

SCHEDULE.

Charges in respect of the matter provided for in the Privy
Council Appeal Rules :

Its. a. p.

Estimate of costs 16 0 0

Preparation of list of papers, per 10 entries,

or part of 10 entries 1 0 0

RULES OF APPEAL FOR INDIA. 183

Rs. a. p.
Report on agreement or disagreement of parties

as to omission, for each entry 010

Translation of vernacular papers, per 1,000

words 800

Revision of vernacular papers, per 1,000 words 400

Transcribing record, per 1,000 words 1 2 0

Examining and certifying ditto 010 0

Chronological index, per 10 entries, or part

thereof 300

Analytical index Special charge

Notes. — (a) Translation includes the reading of the trans-
lated documents to the examiner,
(b) The above charges are subject to alteration by
order of the court.

CEYLON (0

Ceylon. — Ceylon was taken from the Dutch in 179G,
and was constituted a separate colony in 1801. The
Roman-Dutch law is in force.

The Supreme Court was created by Royal Charter in Supreme
1833. It has equitable jurisdiction by virtue of the Court'
Roman-Dutch law, though there is no Court of Chancery.

The appeal to the Sovereign from the Supreme Court was Appeals,
till recently subject to the rules in the Ceylon Civil Pro-
cedure Code Ordinance No. 2 of 1899, but is now regulated
by a local Ordinance, No. 31 of 1909, and by an Order of
1910 made subject to that Ordinance for further regulating
the procedure.

The Ordinance provides that the Rules of Colonial Appeal Appealable
in general shall apply to appeals from Ceylon, subject to amount,
certain additional provisions, set out below, and to the special
provisions of the rules of 1910. The appealable amount is
Rs. 5,000 or upwards, and an appeal may be allowed in any
other case where the court thinks fit.

Application to the court for leave to appeal must be made Application
by petition within thirty days from the date of the judgment for leave-
appealed from. Security must be given within three
months, and shall not exceed Rs. 3,000.

(») Ceylon is not a part of India, but a separate colony; it is
treated here for the sake of convenience.

184

THE PRACTICE OF THE PRIVY COUNCIL.

Provisions
as to further
security.

Failure to
give addi-
tional security
— execution
to issue.

Security
when not
required in
case of
immovable
property.

Security
in cases of
movable
property.

There are special provisions with regard to security as
follows :

(4) At any time before giving final leave to appeal, the
court may, upon cause shown, revoke the acceptance of any
such security and make further directions thereon.

(5) If at any time after final leave to appeal is allowed,
but before the transmission of the copy of the record to His
Majesty in Council, such security appears inadequate, the
court may order the appellant to furnish within a specified
time other and sufficient security.

(6) If the appellant fails to comply with such order, the
proceedings shall be stayed, and the appeal shall not proceed
without an Order in that behalf of His Majesty in Council,
and in the meantime execution of the decree appealed
against shall not be stayed.

(9) In any case where the subject of litigation shall
consist of immovable property, and the judgment appealed
from shall not change, affect, or relate to the actual
occupation thereof, no security shall be demanded either
from the respondent or appellant for the performance of the
judgment to be pronounced or made upon such appeal ; but
if such judgment shall change, affect, or relate to the
occupation of any such property, then such security shall
not be of greater amount than may be necessary to secure
the restitution free from all damage or loss of such property,
or of the intermediate profit which, pending any such
appeal, may probably accrue from the intermediate
occupation thereof.

(10) In any case where the subject of litigation shall
consist of money or other chattels, or of any personal debt
or demand, the security to be demanded, either from the
respondent or the appellant for the performance of the
judgment to be pronounced or made upon such appeal,
shall be either a bond to be entered into in the amount or
value of such subject of litigation by one or more sufficient
surety or sureties, or such security shall be given by way of
mortgage or voluntary condemnation of or upon some
immovable property situate and lying within this island,
and being of the full value of such subject of litigation over
and above the amount of all mortgages and charges of
whatever nature upon and affecting the same.

RULES OF APPEAL FOR CEYLON. 185

The provision as to the execution of the judgment is
likewise more elaborate than in the case of other colonies.
The Ordinance sect. 31 provides as follows: "Any Order
which His Majesty in Council may think fit to make on an
appeal from a judgment of the court may be enforced and
executed in manner hereinafter appearing :

Whoever desires to enforce or obtain execution of an Judgment of
Order of His Majesty in Council shall apply by petition,
accompanied by a certified copy of the decree or order made
in appeal and sought to be enforced or executed, to the
court.

Such court shall, when the court which made the first
decree appealed from is the Supreme Court, enforce and
execute such order in the manner and according to the
rules applicable to the enforcement and execution of its
original decrees ; but when the court which made the first
decree appealed from is a court other than the Supreme
Court, shall transmit the Order of His Majesty to the court
which made such decree, or to such other court as His
Majesty by his said Order may direct, and shall (upon the
application of either party) give such directions as may be
required for the enforcement or execution of the same ; and
the court to which the said Order is so transmitted shall
enforce and execute it accordingly in the manner and
according to the rules applicable to the enforcement and
execution of its original decrees.

"The Act of 1909 does not expressly repeal sect. 791 of
the Civil Procedure Code, 1889, which may therefore be
taken to remain in force ; it provides that :

" The orders made by the court which enforces or executes Order en-
the Order of His Majesty in Council relating to such enforce-
ment or execution, shall be appealable in the same manner Council, how
and subject to the same rules as the orders of such court
relating to the enforcement or execution of its own decrees."

The judges of the Supreme Court have power to make Power to
rules and orders of court regulating the procedure under the E es§

ordinance ; and their power has been exercised by the
issue of the rules given below.

Finally, provision is made for the conduct of appeals
pending at the date of the ordinance and brought under the
old rules.

186

THE PRACTICE OF THE PRIVY COUNCIL.

Interpre-
tation.

A court of
two judges
may refer
matter to a
full court,
and a single
judge to two
judges.

Notices.

Appointments
of proctors
to be filed in
the registry.

Security for
costs of
appeal.

Deposit to
meet costs of
transcribing,
etc.

ORDER FOR REGULATING THE PROCEDURE
UNDER THE APPEALS ORDINANCE, 1909.

1. In this Order " The Ordinance" means "The Appeals
(Privy Council) Ordinance, 1909 " ; " The Scheduled Rules "
means the rules in Schedule I. to the Ordinance ; and, for the
purpose of applications under the Scheduled Rules, " Court"
means the Supreme Court of Ceylon consisting of not less
than two judges.

2. A court consisting of not less than two judges may
refer any matter before it arising under the Ordinance or the
scheduled rules to a court of not less than three judges ; and
a single judge whether sitting in court or in chambers may
refer any such matter before him to a court of not less than
two judges.

3. A party who is required to serve any notice may him-
self serve it or cause it to be served, or may apply by motion
in court before a single judge for an order that it may be
issued by and served through the court ; and in the latter
case he shall, within two days after obtaining the order,
lodge in the registry a notice in duplicate, prepared for the
registrar's signature and duly stamped. The notice may be
served either on the party or on his proctor.

4. A party to an application under the Ordinance, whether
applicant or respondent, shall, unless he appears in person,
file in the registry a document in writing appointing a
proctor of the Supreme Court to act for him in connection
therewith ; provided nevertheless that, if he has already filed
in the registry a writing appointing a proctor to act for him
for the purposes of the original appeal to the court, and
empowering him to act under the Ordinance, no further
appointment shall be required.

5. The security to be given by the applicant under rule 3
(a) of the scheduled rules shall be by deposit of a sum of
Rs. 3,000 with the registrar and hypothecation thereof by
bond, or by such other security as the court shall, on
application made after notice to the other side, approve.

6. (a) The applicant, on obtaining conditional leave to
appeal, either shall deposit with the registrar a sum of Rs. 300
in respect of the amounts and fees mentioned in sect. 5
(2) (b) and (c) of the Ordinance ; or may apply in writing

RULES OF APPEAL FOR CEYLON. 187

to the registrar, stating whether he intends to print the
record or any part thereof in Ceylon, for an estimate of such
amounts and fees, and thereafter deposit the estimated sum
with the registrar.

(b) If it appears at any time that the Rs. 300 or the esti-
mated sum is nob or will not be sufficient, the court or a
judge in chambers may, on the application of the registrar,
on notice to the applicant, require any further sum to be
deposited.

(d) Any balance of the deposit, after payment of the said
amounts and fees, shall on application therefore by the
depositor be repaid to him by the registrar.

7. Application for final leave to appeal shall be by petition, Application
which shall state how the conditions ordered under rule 3 of

the scheduled rules have been complied with.

8. The appellant shall, within ten days after obtaining Documents to
final leave to appeal, serve on the respondent a list of all

such documents as he shall consider necessary for the due
hearing of the appeal ; and the respondent shall, within
five days after the receipt of such list, return it to the
appellant, having first added to it any other documents that
he may consider necessary for the hearing of the appeal, and
notified thereon which (if any) of the documents in the
appellant's list he considers to be unnecessary ; and the
appellant shall, within three days after the return of such
list, lodge it with the registrar, having first notified in like
manner which (if any) of the documents added by the
respondent he considers to be unnecessary.

9. If the appellant elects to print the record or any part If the record
of it in Ceylon, he shall deliver the prints thereof to the £^j°g£
registrar for examination and certification within two

months after obtaining final leave to appeal.

10. If, after final leave to appeal has been obtained, the If conditions
conditions (if any) imposed under rule 3 of the scheduled °°Jhco™Pkied
rules or the terms of this Order have not been complied with, trar not to
the registrar shall not transmit the record to the Privy forward
Council until the appellant has obtained an order for the privy
transmission thereof from the court. Council.

188

THE PRACTICE OF THE PRIVY COUNCIL.

Applications
under rules 26
and 27.

Fees and
amounts
payable for
transcribing,
etc., the
record.

Stamp on
certificate of
appeal.

Applications
in chambers.

Minute book.

Extension
of time.

Commence-
ment of this
Order.

Forms.

11. Before making an order on an application under rule
26 or 27 of the scheduled rules, the court may refer the
application to the court of original jurisdiction in which the
action was brought, to inquire and report who is the proper
person to be substituted 'or entered on the record in place of,
or in addition to, the party who has died or undergone a
change of status.

12. The amounts and fees payable under sect. 5 (2) of the
Ordinance shall be in accordance with the scale in Schedule
I. hereto, and shall be allowed on taxation.

13. Stamps for the duty payable in respect of the regis-
trar's certificate in appeal to the King in Council shall be
lodged by the party applying for leave to appeal at the same
time at which he gives security for the prosecution of his
appeal.

14. All applications to enlarge or abridge the time
prescribed by this Order or by any order made thereunder, and
all applications for payment out of money deposited in court,
may be made to a single judge in court or in chambers. All
application in chambers must be by motion in writing, and
may be supported or opposed by the proctors representing
the parties.

15. There shall be kept in the registry a book in which
shall be entered in order of date under the head of each action
a record of all proceedings taken and things done under the
Ordinance from the filing of the application for leave to
appeal ; and the book may be inspected by the parties or
their proctors.

16. The court may, for good cause, extend the time
allowed by this Order for doing any act, notwithstanding
that the time has expired.

17. This Order shall come into operation when the ordi-
nance is proclaimed, and may be cited as " The Appellate
Procedure (Privy Council) Order, 1910."

18. The forms contained in Schedule II. to this Order
may be used, or others to the like effect.

SCHEDULE I.

(a) Fees to be paid to the Ptegistrar of the Supreme
Court for examining and certifying copies of the record for

RULES OF APPEAL FOR CEYLON. 189

transmission to the Registrar of the Privy Council, whether
they are printed or typed or in manuscript :

Rs. c.
Where the record contains 150 folios or under,

afeeof 105 0

Where the record contains over 150 folios but

under 250 folios 157 50

For every 25 folios or part thereof in excess of

250 folios, a further sum of 10 50

(b) Amounts payable in respect of translating, tran-
scribing, indexing, and transmitting the record :
For translating where any documents are
specially ordered by the court to be trans-
lated :

For every folio 0 37£

With a minimum charge of 5 0

For fair copying the record and examining
the transcript thereof :

For every folio 0 20

With a minimum charge of 10 0

For examining the record when printed :

For every folio 0 7£

With a minimum charge of 5 0

For transmitting the record, the actual sum
paid by the registrar for transmission by
post or otherwise and for insurance.

(A folio to consist of 120 words.)

SCHEDULE II.

(a) Form of Petition for Conditional Leave to Appeal.

Ix THE SUPREME COURT OF THE ISLAXD OF CEYLON.

(Title of Action.)

To the Honourable the Chief Justice and the Justices of
the Supreme Court.

The humble petition of A.B., defendant* appellant above
named (appearing by his Proctor C. />.),

Showeth as follows :

1. That feeling aggrieved by the judgment and decree of
this honourable court pronounced on the day of

190 THE PRACTICE OF THE PRIVY COUNCIL.

,191 , the , appellant, is desirous of

appealing therefrom.

2. That the said judgment is a final judgment, and the
matter in dispute on the appeal amounts to or is of the
value of Rupees five thousand or upwards (a).

Wherefore the appellant prays for conditional leave to
appeal against the said judgment of this court dated the
day of , 191 , to His Majesty the King

in Council.

(a) If the appeal falls under the latter part of sub-sect, (a) of
Scheduled Rule 1, or if the application is made under Scheduled
Rule 1 (b), it shall be here set out. N.B. — If the appellant desires,
the petition can embody an application for settlement of security
under paragraph 5 of the Order.

(b) Form of Petition for Final Leave to Appeal.

IN THE SUPREME COURT OF THE ISLAND OF CEYLON.

(Title of Action.)

The humble petition, etc.,
Showeth as follows :

1. That the appellant on the day of ,
191 , obtained conditional leave from this honourable
court to appeal to His Majesty the King in Council against
the judgment of this court pronounced on the day
of 191 .

2. That the appellant has in compliance with the condi-
tions on which such leave was granted (here set out in what
manner security has been given, the registrar's fees deposited,
and any other condition complied tvith).

Wherefore the appellant prays that he be granted final
leave to appeal against the said judgment of this court
dated the day of 191 , to His Majesty the

King in Council.

IN THE SUPREME COURT OF THE ISLAND OF CEYLON.
(Title of Action.)

Know all men by these presents that I, A. B., the appel-
lant above named, am held and firmly bound to E. F.,

RULES OF APPEAL FOR CEYLON.

Registrar of the Supreme Court, or to the registrar of the
said court for the time being, in the sum of Rupees ,

which amount I deposited with the said registrar on the
day of , 191 , and for the payment of which

sum I bind myself, my heirs, executors, and administrators
firmly by these presents.

And for further securing the payment of the said sum of
Rupees , I do hereby specially mortgage and hypothe-

cate unto the said E. F. and his successors in the said office
of registrar the sum of Rupees so deposited with him

as aforesaid.

Dated at , this day of , 191 .

Whereas the said A. B., on the day of ,

191 , obtained leave to appeal to His Majesty the King

in his Privy Council against the judgment and decree of

the Supreme Court pronounced on the day of

,191 :

And whereas such leave to appeal was granted subject
(inter alia) to the condition that the said A.B. should within
three months from the date of the hearing of the application
deposit with the Registrar of the Supreme Court the sum of
Rupees :

Xow the condition of this obligation is such that if the
above bounden appellant shall duly prosecute the said
appeal to His Majesty in Council, and shall and will well
and truly pay or cause to be paid all such costs as may
become payable to the respondents in the event of the
appellant not obtaining an order granting him final leave
to appeal, or of the appeal being dismissed for non-prose-
cution, or of His Majesty in Council ordering the appellant
to pay the respondent's costs of appeal (as the case may be),
then this obligation to be void and of no effect ; otherwise
to remain in full force.

Signed and delivered in the presence of

191

PART II.

CONDITIONS AND RULES OF APPEAL
IN THE PRIVY COUNCIL.

CHAPTER V.

APPEAL BY RIGHT OF GRANT.

Power of IN the former part of this book it has been pointed out

Colonial Court fch fc in nearly every possession of the British Crown, and

to grant leave , J J ^

to appeal. in every place where the Sovereign has jurisdiction, the

conditions of appeal in accordance with the royal grant have
recently been laid down by Orders in Council on a uniform
scheme. Under this scheme the Colonial Court or the
Court of Foreign Jurisdiction may give leave to appeal to
the Sovereign in two sets of cases. First, when the
appellant establishes that the suit is a final judgment and is
within an appealable . amount fixed for the court by the
Order in Council or Ordinance regulating appeals. Secondly,
when, though not within the appealable amount or not a final
judgment, the question involved in the appeal in the
opinion of the court is one which by reason of its great
general or public importance or otherwise ought to be
submitted to His Majesty in Council. In the first case the
local court cannot refuse the leave to appeal if it is
applied for within the prescribed time, and the appellant is
willing to fulfil the prescribed conditions. In the second
case it is entirely in the discretion of the court to grant or
refuse leave to appeal. Till recently the appeal by right of
grant only comprised, in the case of most colonies, those suits
which were within the appealable amount, and in every
other suit the appellant had to obtain special leave from the
Privy Council before he could bring his appeal. But in
accordance with the desire of the Colonial Conference of

APPEAL BY RIGHT OF GRANT. 193

1907, the prerogative to grant special leave to appeal has
been largely delegated to the discretion of the local courts,
so that now an appeal may be allowed by the local court in
any case whatsoever save where an Imperial or local statute
provides otherwise. And wherever leave is given by a
colonial court, the appeal is brought by right of grant.

Where a grant, which is issued either by virtue of the royal The appeal
prerogative or in pursuance of an enabling statute, such as the as of right'
7 & 8 Viet. c. 69, exists, the subject is said to possess an
appeal as of right to the Sovereign in Council. Where no
such grant has been made and the Sovereign has not parted
with the prerogative, the subject, notwithstanding, possesses
the general right to petition the Crown to exercise its
prerogative by entertaining or permitting an appeal (a). If
the right of granting an appeal is reserved to the Crown, the
right of applying for it is reserved also (#). The grant by
Order in Council normally extends only to the Appellate
Court in the colony or possession. But the enabling
statute, passed in 1843 (7 & 8 Viet. c. 69), which has been
greatly utilised, enabled the Sovereign, notwithstanding that
he had, in granting a constitution or otherwise, ordained
that an appeal shall lie only from a Court of Error, to provide
that an appeal may be had direct from any court of justice
in the possession without proceeding first to a Court of
Error.

In such a case, however, special leave to appeal must be
obtained from the Privy Council.

Besides the cases in which there is a right of appeal, and Special
the cases as to which special leave to appeal should be asked, reference-
there exists a further class of cases which, though in fact
constituting an appeal to the prerogative of the Crown as the
fountain-head of justice, do not strictly come within the
one class or the other. These are the cases which come
before the Council by special reference. This class consists
of two kinds : namely, where the Sovereign exercises an
original jurisdiction, and where the cases in which the
jurisdiction exercised is of an appellate nature, though the
subject-matter of the appeal may not be a grievance which

(a) Reg. v. Bertrand (N. S. W. 1867), L. R. 1 P. C. at p. 529.

(b) The Queen v. Eduljee Byramjee (Bombay, 1846), 5 Moo. at p.
290.

P.C. 13

194

THE PBACTICE OF THE PRIVY COUNCIL.

Eight of
appeal by
grant.

Conditions
binding on
colonial
court.

Discretion of
court below.

Interlocutory
judgments.

can strictly be dealt with as an appeal from a judgment of a
court of judicature. These matters are dealt with in a
later chapter. (See below, pp. 238 ff.)

The general rule of law in this country is that an appeal
does not lie as of right unless given by reason of express
enactment (c). In French Canadian law the presumption
is in favour of the existence of what has been called the
" sacred right of appeal " (d).

The colonial court, or other court before which the cause is
heard, and from which the appeal is sought, has no power to
give leave to appeal to the Sovereign unless first authorised
by some enactment, such as an Order in Council. So,
where (as, for instance, under the charter of justice for British
Guiana, Order in Council, 1831, clause 11) an appeal could
not be admitted by the colonial court unless the securities
were perfected within the time specified by the charter, viz.,
three months from the date of the petition for leave to
appeal, the court had no discretion in the matter, and it
was held that if it granted permission to appeal on the
securities being perfected at a later date, the permission was
invalid ; and it could not acquire validity from any waiver or
implied consent on the part of the respondent (e).

The court below is generally absolutely bound by the
rules of the Order in Council or other instrument which
governs the admission of the appeal, and, unless specially
authorised, is unable to extend any of the periods mentioned
therein. Where the appeal enactment is the provision of
the local legislature, the court often has the power to extend
the time limited for the conditions of appeal being per-
formed. It is, therefore, advisable to ask the court below to
extend the time. It has been held that, under the Civil
Procedure Code of India, the court below should be so asked.
Musswnat Shy am Komadi v. Rajah Ranemcar Singh, 1900.
There is no appeal from a refusal to grant time. Kishen
Pershad Pandaij v. Tiluck Loll, 1892, 18 Calc. 182.

The colonial court is bound by the terms of the grant,

(c) Mayor, etc. of Montreal v. Brown and Another (Quebec, 1876),
2 A. C. at p. 184 ; cf. Att.-Gen. v. Sittem (1864), 10 H. L. Ca. 704.

(d) Ibid., 2 A. C. at 184.

(e) Eetemeyer v. Obermuller (Berbice, 1837), 2 Moo. 93. The
appellant should apply to the Judicial Committee for special leave in
Buch cases.

APPEAL BY RIGHT OF GRANT.

195

and cannot grant leave to appeal from an interlocutory
judgment unless authorised (/). The recent Orders in
Council which define the conditions of appeal from the
Colonial Appellate Courts provide in almost all cases that
the leave may be granted in a suitable cause from an
interlocutory as well as a final judgment, if the court thinks
the case fit for appeal. (See Chap. II., above.) But it has
generally been deemed advisable to require that the appeal
should be reserved until the final or definitive determination
or judgment. When this is given, then, upon appeal from
the final judgment, any subsidiary or interlocutory finding
or judgment can be attacked or questioned. The Judicial
Committee will not encourage appeals from interlocutory
orders of a temporary character. Cf. Croudace v. Zobel,
(1899) A. C. 258.

•• Xo order, judgment, or other proceeding can be final, Final judg-
which does not at once affect the status of the parties for ment-
whichever side the decision may be given, so that if it is
given for the plaintiff it is conclusive against the defendant,
and if it is given for the defendant, it is conclusive against
the plaintiff " (g}. Where in an action for account the court
at the request of the plaintiff selected one item, and in
respect thereof after hearing the evidence made an order that
the action be dismissed, it was held that an appeal might
be taken therefrom as a final order. Macdonald v. Belcher,
(1904) A.C. 429.

When the colonial court had given leave to appeal where it
was doubtful whether the order appealed against was a final
judgment, but the question in controversy was of considerable
importance, the Judicial Committee gave special leave to
appeal at the hearing. Cf. Salisbury Gold Mining Co. v. Hathorn
(Natal), (1897) A. C. 268, and Dangino v. Belliotti,
1 1 A. C. 604.

Where the charter authorised appeal from a " judgment or " Judgment
determination," it was held not to apply to a rule refusing o.r determma-
to strike a person off the rolls (h), nor to an appeal from an Refusal to
order removing a Master in Equity from his office, as the strike'off the

- Rolls.

(/) Goldring v. La Banque D'Hochelaga (Quebec, 1880), 5 A. C. 371.

(g) Standard Discount Co. v. La Grange (1877), 3 C. P. D. at p. 71,
per Brett, L. J. ; and cf. Goldring v. La Banque PHochelaga, supra.
at p. 373.

(h) Morgan v. Leech (Bombay, 1841), 3 Moo. 368.

13—2

196

THE PRACTICE OK THE PRIVY COUNCIL.

Final and
definitive.

New trial.

Steps wliere

rules exist.

court acts ex officio and not in the course of a judicial pro-
ceeding. Sud i matter is the subject of a special reference
or special leave (i). A judgment, of a Court, of Appeal
reversing the judgment of the court below by which the
appellant's action was dismissed, is not a final judgment, and
therefore not appealable as such (o the Privy Council (/).

If an order be in its nature final, leave to appeal should
be given, though it may purport to be a provisional order
only, e.g., where in a suit in the 1 loyal Court of Jersey
between husband and wife for a separation, the court
ordered the children to be left provisionally in the custody
of their mother (/ ).

An order refusing a, rule nisi for a new trial is an appeal-
able order (/) ; and tin; discharge of that rule, when granted,
is an appealable order. A verdict which is the act of the
jury, not of the court, is not appealable if no motion to set
it, aside has been made in the court below (in) ; nor is a
verdict, on an issue directed from the equity side of the
court, (n). Nor \K the finding on a reference, to a Master,
until confirmed by the court (<>). The objection that, a new
trial has not been moved for in the court below should be
taken before the hearing (;;).

Where rules of appeal exist, the conditions of the rules
must be duly complied with (7). The appellant,, in the
event of failure to do so, will be placed in the position of a
person who has no right of appeal, and will have to ask for
special leave to appeal by a petition addressed to the
Sovereign in Coune.il, seeking the exercise of the royal
prerogative.

(/) Jn re MI-H chin (Madras, 1847), 6 Moo. 43 ; Smith v. Justices of
Sierra Leant (Siena Leone, Is 1 1), .", Moo. :tr»l ; but see Jn re '/'//,
Justices of the Common Pleas of A-nliijnn ( IS!'!)), I Kn.-i.pn, 1-)(i7-

(j) Milliard v. Townttrmi ((^nehee, ls;.(i), (i .L. Can. K. 147.

(£) JMxov v. H.l.^n (Jersey, 1849), 7 Moo. :',(>.

(/) Tro-Htwn v. Dent (linn- KonU, iXf.IJ), S Moo. I l!».

(?//) Ibid. ; and Nathoobl/o// ttmmla** \. Mooljce Madowdass, 3 Moo.
87.

(n) NatJioolhoy liamdass v. Madowdast* and Otlicrx (Bombay, 1840),
:; Moo, s? ; Dagwino v. lifiimin ((Jihrultur, J8WJ), 11 A. C. i.in.

(n) llnl., \\ :Vloo. ai p. '.Hi.

(p) M,nr v. (,'n/lllh (SI, Helena, lS(i!)), <i Moo. N. H. 18.

((/) hlvrn \\here the court, may lie informally constituted. 1 he
regular procedure should he lollo\\cd. A'./.- >parte Kensington. (Lec\\ard
Islands, 181M), If, Moo. LM»!».

AI-PKAL NY KK;HT OF (;KANT. 197

The rules always pn>\ide fur Lin- insertion within a limited Time for
pi-riod of the appellant's right or intention of appealing.
The time runs from the date of the judgment. The appeal

is atterted by the appellant moving tin- court below within

• •nod limited or presenting a petition of leave to appeal
which is granted upon his complying with the conditions

peal. The appellant hag to show that lie is a person
who by the terms of the grant ] the right of

appeal. Having appealed, the appellant will not be per-
mitted to object for the first, time on the hearing of the

d that the judgment from which he appeals is void for
want of parties. Orphan llimnl\. \'<ni /,'rrnr/i. 1 Knapp. !M.

If the conditions of appealing are not duly complied with, ('.unlit ions of
the failure may be mad-- by the respondent a ground of aPIlt::i1-

:iori 10 the appeal in tin- Appellate Court; the irregu-
larity cannot, be waived by the respondent or cured by

:it. Where an appeal was admitted from India
contrary to the section in the Civil ('ode requiring a
substantial point of law to be raided if tl
from allirms the decision of the court below, it was dismissed
without hearing. Cf. h'arv/ijxttiai Nr/v// v. >V. C/n-tfi,
(l!loi) L>!> I.

The Colonial Mules of Apjn-al regularly provide an appeal- Appealable
able amount which varies from Moo/, to i^ooo/. Where the am°unt.
amount in issue is equal to or e.vreds ih-- ap{K*aIable
amount the party aggrieved has a right, of appeal; and it

• n therefore u moor question whether the amount
invoh B within the limit. A number of decisions

given on the point, which provide an idea of

rue measure of value. In the cane of most colonies

• riizht either where the matter in dispute

on th" Amounts to or i< of the value of the appealable

sum, or where; the appeal involves directly or indin-ctly some

claim or question to oi 'ig ]irop«-rty, or some civil

amounting to or of th»- value of th-- appealalil- sum or

;>. II., al
proper measure of value for determining the question Rule as to

of a plaintiff appellant the amount, for which

th«- defendant : in the lower

i. Mohidun Hadjjar v. Ptic | A. 0.198. And

the defendant is an appellant, the amount which

198 THE PRACTICE OF THE PRIVY COUNCIL.

has been recovered by the plaintiff in the action and against
which the appeal would be brought. Allan v. Pratt,
13 A. C. 780. The rule is that the judgment is to be
looked at as it affects the interests of the party who is
prejudiced by it, and who seeks to relieve himself from it by
appeal. Where an action for possession and mesne profits
was dismissed, the appealable amount was the value of the
property and the mesne profits. Moliideen Hadijar, etc.
(supra). In some cases the value to the defendant of an
adverse judgment is greater than the value laid by the
plaintiff to his claim. If so, it would be unjust that he
should be bound not by the value to himself, but by the
value originally assigned to the subject-matter of the action
by his opponent. Allan v. Pratt (supra).

Value where A sum less than 500?. sterling, the appealable amount,
appeals"^ ^ad keen obtained by a decree in Lower Canada, and
certain proceedings had been instituted in which the judg-
ment creditor claimed the goods in the hands of third
persons to satisfy the judgment. The court in Canada
adjudged that the goods, which were worth a sum consider-
ably more than the appealable amount, were liable to
satisfy the judgment creditor. The matter was not of
equal value to the judgment creditor and the owner of the
goods. The court in Lower Canada gave the third party
leave to appeal against the order adjudging that the
goods were liable, and the Judicial Committee held, on a
petition to rescind the leave, that the matter in dispute
upon which the appeal was founded exceeded the appealable
limit, and that leave was rightly given. Macfarlane v.
Leclair, 15 Moo. 81.

Where a cestui que trust who was entitled to half of a trust
fund of 700Z. brought an action against the trustees alleging
breaches of trust with respect to the whole fund, and judg-
ment was given for the defendants, the Victorian Court
held that the case was not within the appealable amount
(500/.) and refused leave to appeal. Skinner v. Trustees
and Executors Agency, 27 Y. L. R. 377.

The fact that the appellant is entitled to be recouped the
amount of the judgment against him by a third party does
not debar him from having an appeal as of right, if he is
liable in the first instance to pay a sum exceeding the

APPEAL BY RIGHT OF GRANT. 199

appealable amount. Kidney v. Melbourne Tramway Co.,
8 A. L. R. 29.

Several suits in which separate judgments have been Consolida-
given cannot be consolidated for the purpose of permitting
an appeal by making the aggregate amount exceed the
appealable amount. Jfoofti Mahummud Ubdoolleh v. Baboo
Motechund, 1 Moo. I. A. 363.

But where an important question of law was raised in five
suits in each of which the value was under the appealable
amount, though in the aggregate the sums claimed were over
that amount, leave to appeal was granted on the parties
undertaking to abide by the decision in the first appeal.
Baboo Gopal Lall Thakoor v. Teluk Rai, (1860) 7
Moo. I. A. 346.

In an Indian case, where the plaintiff claimed damages Value where
above the appealable amount and his suit was dismissed damages
without determination of the amount that would have been tained.
recoverable, and the High Court refused leave to appeal,
the Judicial Committee granted special leave. Moulvi
Mahommed Huq v. Wilkie, L. R. 33 I. A. 176. A declaration
claiming unliquidated damages for 5,000?. for slander has
been held a matter at issue above the appealable amount
such as will entitle the plaintiff to appeal when judgment
has been given for the defendant. Simmons v. Mitchell,
L. R. 6 A. C. 156.

Where a decree has been pronounced ordering the payment Value where
of a sum of money, the sum so adjudged furnishes a measure
of value, whether it be purely a principal sum or be made
up of principal and interest combined. For instance, where
a sum was awarded for damages by a jury, and a rule nisi
to set aside the verdict was moved and discharged, and judg-
ment was entered for the plaintiff for an amount including
the damages and interest thereon to judgment, such sum
formed the measure for the appealable value (r). But if the
appealable amount can only be reached by interest subse-
quent to the judgment or decree, there is no appeal as of
right. It is in such a case a matter of discretion with the
Colonial Court or the Privy Council to permit an appeal (r).

(r) Bank of New South Wales v. Owston (N. S. W. 1879), 4 App. Cas.,
following Gooroopersad Khoond v. Juggutchunder (Calcutta, 1860),
8 Moo. I. A. at p. 168.

200

THE PRACTICE OF THE PRIVY COUNCIL.

Costs no part
of appealable
value.

No appeal
as to costs.

Aliter where
mistake in
law.

Where judgment in a Victorian suit was given for 500?.
damages for breach of warranty, and the amount claimed
had been 52 57., the court refused leave to appeal under the
Order in Council, as the matter at issue was not above 500/.,
the court being of opinion that the later clause of the Order
in Council, dealing with any civil right of that value, is
intended to provide for cases not comprised in the former.
Gardiner v. JH'Ctdloch, 2 V. L. E. (1876) 128.

The costs of a suit are no part of the subject-matter in
dispute (s). But where in an action of trespass the judge, on
the application of the defendant one hour after the trial,
deprived the plaintiff of costs, and the full court upon appeal
held that the application was too late and that the judge had
no jurisdiction to entertain it, and ordered the defendant to
pay plaintiff's costs which exceeded the appealable amount, it
was held by the Victorian court an appeal lay. Ricketson v.
Bourchier, 16 V. L. R. 800.

An appeal will not be allowed merely as to costs where the
costs are in the discretion of the court, even if they amount to
the appealable value (/). But where discretion as to costs has
not been fairly exercised, or the court below has proceeded
upon a mistake or misapprehension, an appeal will lie (u).

Where there has been bond fide care and discretion exercised
on the part of the judge who decided the case, no appeal will
lie in respect of costs alone. The court will not inquire
whether the discretion has been exercised wisely (x). If,
however, there has been a mistake upon some matter of law
which governs or affects the costs, the party prejudiced is
entitled to have the benefit of correction by appeal (y). So

(s) Doorga Doss Chowdry v. Ramanauth Chowdry (Calcutta, 1860),
8 Moo. I. A. 262. See Nilmadhub Doss v. Bishumber Doss (Bengal,
1869), 13 Moo. I. A. 85 ; Great Western Railway of Canada v. Braid
(Up. Can. 1863), 1 Moo. (N. S.) 101.

(t) Credit Fonder of Mauritius v. Paturau (Mauritius, 1876), 35
L. T. 869, P. C. ; Wilson v. Reg. (V.-Adm. Sierra Leone, 1866), L. R.
1 P. C. 405 ; Mussumat Keemee Baee v. Latchman-Das Narrain-Das
(Bombay, 1837), 1 Moo. I. A. 470.

(u) Attenborough v. Kemp (Arches Court of Canterbury, 1861), 14
Moo. 351.

(x) Ibid. ; Inglis v. Mansfield (1835), 3 Cl. & Finn, at 371 ; Richards
v. Birley (York, 1864), 2 Moo. (N. S.) 96 ; Wilson v. Beg. (Sierra Leone,
1866), 4 Moo. (N. S.) 307 ; S. C., L. R. 1 P. C. 45, 405 ; Rieken v.
Justices of Yorke Peninsula District, (1908) A. C. p. 454.

(y) The Orient (1871), 8 Moo. (N. S.) 74 ; L. R. 3 P. C. 696 ; Rajun-
der Narian Rae v. Bijai Govind Sing (Bengal, 1839), 2 Moo. I. A. at

APPEAL BY RIGHT OF GRANT. 201

where a court, which was by law required to order costs to
be paid to the party in whose favour the decree was made,
took upon itself to direct that each party should pay his own
costs, the Privy Council affirmed the decision of a Court of
Appeal by which this direction was reversed (z).

Where the court below should have granted leave to appeal, Leave
the question in dispute being of the appealable value, but ^f^f^y
it has refused, a petition should be presented addressed to court below.
His Majesty in Council by way of appeal from such refusal,
and asking that such order may be set aside and leave to
appeal be granted. Cf. Wilson v. CaUender, 9 Moo. 100 ;
Bank of Australasia v. Harris, 16 Moo. 97 ; In re Sibmarain
Ghose, 8 Moo. L>:>7.

The Judicial Committee has recommended the grant of Evidence of
leave to appeal, on being satisfied as to the real value, even value-
where it is greater than the stamp duty would have indicated.
In one case in which leave was granted, the true value was
stated in the judgment of the court below. In another case,
the order admitting the appeal directed that the registrar of
the court below " should transmit, together with the record,
satisfactory evidence, to be supplied by the appellants, that
the real or market value of the land in dispute exceeded the
sum of Rs. 10,000, otherwise that such leave to appeal be
null and of no effect " (a). The court which is asked to
grant leave to appeal should ascertain the value of the
suit. Where there was a right of appeal to the Supreme Court
in the colony in certain cases where the amount involved
was over 500/., the Judicial Committee held that the Supreme
Court was wrong in refusing to hear an appeal on the ground
that the value should be found and stated by the court
appealed from, and could not be ascertained by themselves
on affidavit. Falkners* Gold Mining Co., Ltd. v. M'Kinnery,
(1001) A. C. 581.

The Victorian courts have given several decisions upon Where no
the interpretation of the words contained in the Colonial c

260 ; see also Emery v. Binns (Jamaica, 1850), 7 Moo. 195 ; Yeo v.
Totem, L. R. 3 P. C. at p. 702.

(z) Mussumat Keemee Baee v. Latchman-Das Narrain-Das (Bombay
1837), 1 Moo. I. A. 470.

(a) Mussumat Ameena Khatoor v. Radhabenod Misser (Calcutta,
1859), 7 Moo. I. A. 261 ; Hohun Loll Sookul and Another v. Bebee Doss
and Others (1860), 7 Moo. I. A. 428.

pecuniary
value.

202

THE PRACTICE OF THE PRIVY COUNCIL.

Ontario.

Fixing
security and
conditions
of appeal.

The court
below fixes
the security.

Rules of Appeal, which prescribe an appeal as of right in
certain other cases besides those in which the matter in issue
on the appeal is within a fixed pecuniary amount. And
though these decisions have no binding force for other colonies
they may be referred to for the purpose of showing the cir-
cumstances in which an appeal may be claimed.

" Any civil right of the value of 500Z. In Gardiner v.
McCulloch, 2 V. L. R. (1876), 128 (Law), where a muni-
cipality sued for 18/. rates, and the defence was that the
plaintiffs were not duly incorporated, and at the time of
application for leave to appeal there was due to plaintiffs 600/.
for rates, the plaintiffs were held entitled to appeal. Of. Muni-
cipal District of Gundagai v. Norton, 15 N. S. W. Rep. (1894)
459 ; and see Aft. -Gen. v. Municipal Council of Sydney, 13
N. S. W. (Eq. 1892) 151.

Where the plaintiff recovered 200/. from a municipality for
damages caused to his property by the overflow of water
from a drain, it was held that the judgment involved
the civil right of the municipality to keep the drain in order
which was a right above the value of 500?., and leave to
appeal was therefore granted. Kanimbrick v. Mayor of Haw-
thorn, 29 V. L. R. 433.

In Ontario there is no general appeal as of right unless the
matter in dispute exceeds the amount of §4,000. For the
practice when civil rights of unliquidated pecuniary value are
in issue, see pp. 54 ff.

Where an appeal is admitted by right of grant, the court
admitting the appeal must fix the amount of security to be
furnished by the appellant for the costs of the appeal and
the other conditions of the appeal according to the terms of
the Order in Council which regulates the procedure.

The court from which the appeal lies, upon application
being made for leave to appeal, in the first place grants
only conditional leave and fixes the security. The appellant
has to see to the completion of the security within the
time limited by the rules. The appellant in his application
for leave generally asks, where the rules provide for it, to
have execution suspended. Where the court refuses to
stay execution, it often requires the respondent to give
security to carry out the order which the Sovereign in.
Council may direct. The rules regularly provide in any

APPEAL BY RIGHT OF GRANT. 203

case, as a condition of the appeal, that security shall be
given by the appellant for all such costs as the court may
think likely to be incurred by the appeal up to a limit
named in the rules, and by way of security for the prose-
cution of the appeal. It is the usual practice for the
court to order that the appeal be admitted upon the required
security being given, and when the security has been com-
pleted to the satisfaction of the court, to declare by a final
order that the appeal is admitted.

It sometimes happens that before the appellant has
obtained leave to appeal, the respondent has obtained execu-
tion without furnishing security to the appellant as required
by the Order in Council ; in such case, application may be
subsequently made by the appellant to have such omission
repaired (&), but the court may decline to interfere (/•).

Where the decree concerns realty, the practice in India is
to estimate the niesne profits for three years, and require the
decree holder to give security to that amount, that being
considered the time necessary to obtain a decision of the
Privy Council on the issue (d). The judge will have the
sufficiency determined by a proper inquiry, and not decide
off-hand that it is inadequate (e).

If the conditions of the appeal are not duly complied with, Result of non-
the omission may be the subject of a preliminary and fatal comPhance-
objection to the hearing of the appeal.

It may happen that the court below may misconstrue the On refusal to
Order or other instrument under which the appeal is enabled admit aPPeal-
to be brought. In such a case the appellant must apply for
special leave as explained in the next chapter.

As a general rule, the Privy Council will not interfere Discretion of
in any matter which has been left to the discretion of the
local court (/), but, on the other hand, it will review its
arbitrary exercise. Where the appellant was suing in forma

(b) Mussumat J ariut-ool-Butool v. Mussumat Hosseinee Begum
(1865), 10 Moo. LA. 196 ; followed in Sooruj Monee Dayee v. Sudan-
und Mohapattur (1869), 12 Suth. W. R. 296.

(d) Ameroonissa Khatoon v. Dunne (1870), 14 Suth. W. R. C. R.
361.

(e) Dunne v. Ameroonissa Khatoon (1870), 13 Suth. W. R. C. R. 41.

(f) Johnson v. Voight (Lagos, 1896), 75 L. T. 57.

204

THE PRACTICE OF THE PRIVY COUNCIL.

Sufficiency of
security.

" Proper
security."

How security
furnished.

pauperis and the local court ordered him to find 500?. security
as a condition of prosecuting the appeal (which was the
whole value of the suit) the Judicial Committee interfered.
In another case, it reduced the security required from
1,200/. to 300/. (g), and where the Attorney-General of the
Isle of Man, suing in the Court of Exchequer of the island,
in respect of an injury to Her Majesty's property, was
allowed leave to appeal upon the condition of his entering
into recognizances for costs of the appeal, the Judicial
Committee, on his petition heard ex parte, removed the
condition (h).

The decision of the court below is final as to the amount,
value, sufficiency, and the reception of the security
tendered (f), but not on the question whether the local
court has rightly applied the law as to the security to be
required (&).

Where the Act, on an appeal from Canada, required
" proper security," security with proper sureties was to be
understood (/). A bond entered into by the appellant alone,
of which the condition is that it should be void if the
appellant should effectually prosecute his appeal and answer
the condemnation, and pay such costs as might be awarded,
etc., is not a " proper security," because, in the event of his
death pending the appeal, there could be neither principal
nor surety to the bond (m).

There is no rule that the security must be delivered into
the hands of the respondents, and the Judicial Committee
can interfere where such a condition has been declared by the
colonial court necessary to validate the appeal. Cf . Melbourne
Tramway Co. v. Mayor of JFitzroy, (1901) A. C. at p. 173.

The appellant company there executed bonds for the
amount of security required by the court in favour of the
respondent city, but deposited the bonds with the profcho-
notary of the court and not with the city. The Australian

(g) Hulm v. H. (Mauritius, 1843), 4 Moo. 262.

(h) Att.-Gen. of Man v. Cowley (Man, 1859), 12 Moo. 27 ; Robertson
v. Dumaresq (N. S. W. 1864), 2 Moo. (N. S.) at 80; cf. The Att.-Gen.
of Victoria (Viet. 1866), 3 Moo. (N. S.) 527.

(t) Cambernon v. Egroignard (Mauritius, 1830), 1 Knapp, 251 ;
Laing v. Ingham (Mauritius, 1839), 3 Moo. 28.

(k) Craig v. Shand (Demerara, 1830), 1 Knapp, 253.

(1) Powell v. Washburn (U. C. 1838), 2 Moo. 199.

(m) Ibid.

APPEAL BY RIGHT OF GRANT. 205

court, on the application of the respondent, then discharged
the order granting the appeal, which compelled the
appellants to proceed by special leave from the Privy
Council. The Judicial Committee held that the Australian
court proceeded on an erroneous construction of the Order
in Council, which did not require delivery to the respondent
of the bonds constituting his security. Any effectual
delivery was a compliance with the order, and it was a
convenient practice to deliver bonds to the prothonotary.

As a general rule the Judicial Committee will not interfere Conditions
with the discretion of the colonial court in fixing the °* appeal
conditions of the appeal. reviewed by

The court below is, however, bound to exercise its judg- p- c-
ment as to whether any particular case is appealable or not ;
and where a Canadian court, upon an application for the
deliverance of security upon the appeal to His Majesty in
Council allowed the security, but directed that " this Order
shall not prejudice the right of the respondent to object to
the competence of the said appeal," the Judicial Committee
held that the appeal was incompetent, and ordered the
appellants to pay the costs of the appeal. Gillett & Co. v.
Lumsden, (1905) A. C. 601.

Informd pan peris. — The court below, where authorised to In forma
grant leave to appeal subject to certain specified conditions P™!'*™*-
as to security, cannot give leave to appeal in formd pauperis.
Such leave must be asked before the Judicial Committee ;
and is not given of course. Quinlan v. Quinlan, (1901)
A. C. 615. But where the case as regards amount, value
and nature is fit to be taken to appeal, the Judicial Com-
mittee will grant special leave (Ponnamma v. Arumogam,
(1902) A. C. 511). Application, however, for leave to
appeal should first be made within due time to the court
below. (See infra, " Special Leave to Appeal," p. 226.)

The proper course, when an irregularity has happened The course
which may be fatal to the appeal, is for the respondent to tne respon-
apply by petition as early as possible, and before the cases pursue^hen
are lodged, and the expense of preparing them is incurred, irregularity.
in order to bring the point before the Judicial Committee
and to get the appeal dismissed. It is then open to their
lordships either to recommend His Majesty to dismiss the
appeal, in which case the parties are not put to the expense

206

THE PRACTICE OF THE PRIVY COUNCIL.

Appeal at
discretion of
colonial
court.

of preparing for the hearing, or to grant special leave to
appeal (n).

When the case is not within the appealable limit prescribed
by the Order in Council affecting the particular colony or
possession for admitting an appeal as of right, the colonial
court may nevertheless admit the appeal if it regards the
question as one which from its public or general importance
is fit for appeal. (See p. 24.) In determining the inter-
pretation of these words the colonial courts will doubtless be
influenced by the decisions of the Judicial Committee in
cases where special leave to appeal was applied for. The
colonial courts have virtually obtained a delegated power to
grant special leave. (For these cases see the next chapter,
pp. 215-220).

(n) Sauvageau v. Gauthier (Quebec, 1874), L. R. 5 P. C. 494, 500 ;
Pisani v. Att.-Gen. of Gibraltar, ibid, at p. 525.

CHAPTER VI.

APPEAL BY SPECIAL LEAVE.

WHERE no appeal lies by right of grant from the colonial When neces-
court, or where a court below has no power to grant leave, or ^ia! leave.n
where it has power but has refused to grant leave to appeal,
if a party desire to appeal from the decision of any court
or judicial officer, he must present a petition addressed to the
King in Council for special leave to appeal.

The Consolidated Rules of the Judicial Committee issued
in December, 1908, provide as follows in regard to the
leave to appeal:

Leave to Appeal.

2. All appeals shall be brought either in pursuance Leave to
of leave obtained from the court appealed from, or, in

the absence of such leave, in pursuance of special leave
to appeal granted by His Majesty in Council upon a
petition in that behalf presented by the intending
appellant.

3. A petition for special leave to appeal to His Form of
Majesty in Council shall state succinctly and fairly

all such facts as it may be necessary to state in to appeal,
order to enable the Judicial Committee to advise His
Majesty whether such leave ought to be granted.
The petition shall not travel into extraneous matter,
and shall deal with the merits of the case only so
far as is necessary for the purpose of explaining and
supporting the particular grounds upon which special
leave to appeal is sought.

4. The petitioner shall lodge at least three copies Three copies
of his petition for special leave to appeal together ?1 ^J1 T to
with the affidavit in support thereof prescribed by together with
rule 50 hereinafter contained.

208 THE PRACTICE OF THE PRIVY COUNCIL.

Time for 5. A petition for special leave to appeal may be

petftion. lodged at any time after the date of the judgment

sought to be appealed from, but the petitioner shall,

in every case, lodge his petition with the least possible

delay.

Rules as| The general rules as to petitions before the Judicial

to petitions. Committee, 47—50 and 52—59 (both inclusive), apply to
petitions for special leave to appeal. (See rule 7.) These
rules specify the form of the petition, the provision for a
person claiming a right to appear to lodge a caveat, the
obligation to serve the petition, the method of verifying
it by affidavit, and the regulations for setting down and
hearing the petition. They are set out below at pp. 257 ff.
Petition must The petition for special leave seeks the exercise of the
be frank. prerogative power, and therefore ought to disclose in the
fullest and frankest manner the circumstances under which
the leave is sought (0), and should contain a statement of
the proceedings sufficiently full and precise to enable the
Judicial Committee to form an opinion (p). The petition
should indicate the questions to be raised at the hearing (g),
disclose a general point of law to be decided and a sub-
stantial case upon the merits, and should be supported by
affidavit. If the statements in the petition are too vague
and general, it will either be dismissed or ordered to stand
Special over ^or amendment (p). Special grounds must be dis-

grounds. closed in the petition asking leave (r). The petition should

show that application has been made to the court below for
leave, or the reason for the omission should be stated. The
grounds upon which leave is asked should be stated
succinctly but fairly. This is important to bear in mind,
since parties are required to confine themselves to the
petition. It is therefore usual in the petition to set forth
the salient passages of the judgment to which objection is

(o) Lyall v. Jardine, 7 Moo. (N. S.) 116 ; Mussoorie Bank v. Ray nor,
1 A. C. 328 ; Baudains v. The Jersey Banking Co., 13 App. Cas. 832.

(p) Goree Monee Dossee v. Juggut Indro Narain Chowdry (Bengal,
1866), 11 Moo. I. A. 1. See hereon Canada Central Railway v. Murray
(1883, S. C. Can.), 8 A. C. at p. 576 ; Dumoulin v. Langtry (Quebec,
1887), 57 L. T. 317.

(q) Sheo Singh Rao v. Dakho (Calc. 1878), L. R. 5 I. A. 87 ; Annun-
domoyee Chowdrain v. Sheab Chunder Roy, 9 Moo. I. A. 287.

(r) For a precedent of a petition, see Appendix D., p. 470.

APPEAL BY SPECIAL LEAVE. 209

taken (s). The argument on the appeal should accordingly Special
be consonant with the grounds set forth in the petition for grounds-
special leave. Sheo Singh Rao v. Hussumat Dakho,
L. R. 5 I. A. 87. The petition is referred to the Judicial
Committee, who advise the Crown as to the propriety of
granting or withholding permission. Until an appeal is
permitted and the papers are sent to England by the proper
authorities, the Judicial Committee has no control over the
record and proceedings.

The petition should be supported by affidavit, on Affidavit,
foolscap, made by the solicitor lodging the petition (Q.
The general rule is to grant the leave upon the ex parte
statements made in the petition. Brown v. McLaughan,
7 Moo. (N. S.) 306.

Untrue /Statements. — If the statements in the petition for
leave to appeal are untrue, the appeal will be dismissed with
costs. Wilson v. Callender, 9 Moo. 100.

Now that the power of granting leave to appeal has been The exercise
delegated to most colonial courts of appeal, the Judicial of ***? Pre"
Committee will be particularly loth to grant special leave
except in a strong case. It has always been their rule
to pay attention to the wishes of the colony as expressed by
their legislation, and the exercise of the prerogative will not
be recommended except in cases of general importance (u).
Even then leave will be refused if it appears that the court
below has decided the case independently of any point of law
upon a particular view of the facts, for the Privy Council
adopts the facts as found by the court below, and will not
review such findings in an appeal entertained as an act of
grace (v). The Privy Council have, however, granted
special leave on a point of general law (w). Cases vary so
widely in their circumstances that the principles upon
which an appeal ought to be allowed do not admit of any-
thing approaching to exhaustive definition. In some cases,

(s) Canada Central Railway v. Murray (Canada, 1883), 8 A. C. 576.

(0 McKeUar v. Wallace (Calcutta, 1853), 8 Moo. 378, 395.

(u) Cite de Montreal v. Seminaire de Ste. Sulpice (S. C. of Canada,
1889), 14 App. Ca. 660 ; Dumoulin v. Langtry, 57 L. T. 317. Cf.
Prince v. Gagnon (S. C. of Canada, 1882), 8 App. Ca. 103 ; Robinson
v. Canadian Pacific Railway, (1892) A. C. 481.

(v) Bank oj New Brunswick v. McLeod (N. B. 1882).

(u;) Goree Monee Dossee v. Jogendro Narain Chowdry, 12 Jur.
(N. S.) 477.

p.c. 14

210

THE PRACTICE OF THE PRIVY COUNCIL.

Applications
for special
leave, how
made.

Respondent
in England.

as in Prince v. Gagnon, their lordships have had occasion
to indicate certain particulars the absence of which will
have a strong influence in inducing them to advise that
leave should not be given, but it by no means follows that
leave will be recommended in all cases in which these
features occur.

A case, it was there said, may be of a substantial character,
may involve matter of great public interest, and may raise
an important question of law, and yet the judgment from
which leave to appeal is sought may appear to be plainly
right, or at least to be unattended with sufficient doubt
to justify their lordships in advising the Sovereign to grant
leave to appeal.

Exparte.— Applications for leave to appeal may be made
ex parte (x) and granted at once upon the credit of the
statements contained in the petition, if the case stated is
sufficiently strong (y). Although, however, applications for
special leave to appeal are often made ex parte, it has been the
practice of the Judicial Committee, when it appears from
the papers or from information otherwise forthcoming that
the respondents in the matter are likely to be resident or in
business in England, to direct the application for leave to
appeal to stand over to permit of such possible opponents to
be served with notice. Where it appeared, after the petition
for leave to appeal was lodged at the Council Office, that the
respondents had a branch in London, the petitioners
appeared at the Board and asked that their petition for leave
should stand over on their undertaking that the respondents
should in the meantime be duly served with a copy of the
petition. The request was granted and the respondents
duly entered a caveat (z).

Where an application to stay proceedings pending appeal
was made ex parte and the application had some merits, but
justice could not be done in the absence of the other party,
the petition was dismissed without prejudice to any further
application to the court (a). The court grants the leave

(x) See Cremidi v. Parker (Adm. 1857), 11 Moo. at p. 85.
(y) Lyall v. Jardine (Hong Kong, 1870), L. R. 3 P. C. 318.
(z) North Australia Territory Co. v. Goldsborough, Mort & Co., P. C.
Arch. February 22, 1890.

(a) Rajah Perladh Sein v. Baboo Singh, 10 Moo. I. A. 78.

APPEAL BY SPECIAL LEAVE. 211

where there is any reasonable ground for contending that
the grievance is appealable. But where there is some doubt
as to the competency of the appeal, liberty is generally
reserved for the other side to apply by petition to discharge
the order granting leave to appeal (b).

Evidence on Application for Leave. — If at the hearing of
the application for leave to appeal it is thought necessary to
refer to the record of the proceedings of the court below, or
to any part of them, copies under the seal of the lower
court, or at least copies verified by the affidavit (c) of the
party exhibiting them, ought to be produced.

The Order giving Leave to Appeal. — When leave to appeal
is granted, the order granting it generally directs the
registrar of the court below to transmit to the Registrar of
the Privy Council, without delay, authenticated copies,
under the seal of the court, of the record, pleadings, pro-
ceedings, and evidence, and the reasons of the judges proper
to be laid before His Majesty on the hearing of the appeal.
The order, also, generally imposes conditions.

Counter -petition to Dismiss. — Whether liberty be reserved Petition to
or not for the respondent to apply to discharge the order dismiss-
giving leave to appeal, the other side may so apply upon
reasonable grounds ; and if at any time it subsequently
appears that there has been any misstatement, even one
which does not necessarily imply bad faith (d), the order
giving leave to appeal is rescinded, upon a counter-petition
by the respondent to dismiss. For the statements in such
counter-petition, see Ex parte Robinson (N. S. W. 1857),
11 Moo. at p. 291. Such counter-petition may be pre-
sented without leave. Sibnarain Ghose v. Hullodhin Doss
(Gale. 1854), 4 Moo. 354.

Olrjection to the Competency of the Appeal should be taken Objection to
at the earliest possible moment, whether the leave to appeal
has been granted by the court below or by the Privy
Council, in order to save all parties from needless vexation

(b) Robertson v. Dumaresq (N. S. W. 1864), 2 Moo. (N. S.) 96 ; Hill
v. The Queen (Jamaica, 1852), 8 Moo. 138, 149 ; In re Ames (Jersey,
1841), 3 Moo. 409.

(d) Bulkeley v. Scutz (Constantinople, 1870), L. R. 3 P. C. 190 ;
Quintan v. Quinlan, (1901) A. C. 612.

14—2

212

THE PRACTICE OF THE PRIVY COUNCIL.

Special leave
when inap-
plicable.

Application
to the court
below where
possible.

and expense, and the conduct of a party who has not
objected in due time will affect the question of costs (e).

Courts of Special Jurisdiction. — Where the court below is
one of special jurisdiction, as, for instance, the court con-
stituted under the Controverted Elections Act of Canada,
and the instrument by which it is constituted declares that
its judgments shall be final, special leave to appeal will be
refused if it appears that the matters in dispute have only a
narrow application, and it is desirable that they should be
speedily decided (/). So leave will be refused where a
court below has acted by agreement of the parties as a court
of special reference (g).

Where the Decision below is not susceptible of Appeal. —
Where under the Quebec Controverted Elections Act, 1875,
the Superior Court in the province of Quebec was constituted
a court to hear election petitions, and it was provided that
the judgment should not be susceptible of appeal, leave to
appeal was refused (h).

Court guided by Equity and Good Conscience. — The
Supreme Court of Tasmania was, by the Colonial Act, 10 of
1858, created a land court to determine disputes concerning
lands hitherto ungranted by the Crown. The decision was
to be final and the court guided by equity and good con-
science and not by the judicial rules of evidence. In these
circumstances it was held that the Crown's prerogative
right to grant leave to appeal was inapplicable (*).

Where, however, a Colonial Act declared that the decision
of a court to try questions of the natives' right should be
final and conclusive, but did not expressly exclude the pre-
rogative, it was held that the right of appeal to His Majesty
remained, the court being concerned with the ordinary legal
rights of subjects to the King. In re Wi Matua, (1908)
A. C. 448.

Before applying by petition to the Sovereign in Council
for special leave to appeal, an application should be made to

(e) Loughnan v. Haji Joosub Bhulladina (The Hydroos) (Bombay,
1851), 7 Moo. 373 ; Shire v. Shire (Mauritius, 1845), 5 Moo. 81, 82.

(/) Kennedy v. Purcell (Ontario, 1888), 59 L. T. 279.

(g) Att.-Gen. of Nova Scotia v. Gregory (S. C. Can. 1886), 11 A. C.
229 ; cf . Ward v. Bishop of Mauritius, 99 L. T. 854.

(h) Theberge v. Laudry (Quebec, 1876), 2 A. C. 102.

(») Moses v. Parker (Tasmania), (1896) A. C. 245.

APPEAL BY SPECIAL LEAVE.

213

the court below in the event of that court having power to
grant leave to appeal (&). For if the appellant has not
applied to the court below, the Privy Council, if it should
appear that the court had power to permit an appeal, will
not entertain the application without a satisfactory
explanation of the circumstances, or unless some general
right is called in question or some special grounds be
shown why leave to appeal should be granted as an act oc
grace (/).

Points not raised in Appeal Moiv. — If there has been an
appeal below on a special point, it is often desired to appeal
generally from points not appealed from. In such a case the
appellant should not wait for the hearing, but should apply
before the hearing for special leave to appeal (in).

Where Leave granted is Insufficient. — Leave to appeal from
the judgment upon an interpleader issue had been granted
by the Supreme Court. In the course of the argument it
appeared that the real question was whether the Inter-
pleader Act was in force in the Colony (Tobago) and there-
fore whether the order directing the parties to interplead
was correct. Colonial Bank v. Warden, 5 Moo. 340. As
the petition for leave to appeal did not include that order,
the Judicial Committee gave leave to present a petition for
leave to amend the petition of appeal by inserting therein
the order in question, upon terms of paying the costs of
the change.

Leave refused because below Appealable Value. — When the Appeal from
court below has refused leave to appeal on the ground that refusal of
the question in the suit is below the appealable value, or w^f petition
that it was irregularly brought, and an appeal is brought for special
from such refusal, it is frequently convenient in the petition leave<
of appeal to ask for special leave to appeal (n). In advising
the Crown to exercise the prerogative in such a case, the
Judicial Committee will be governed by a consideration of

(k) Maharajah Sutteeschunder Roif v. Guneschunder (Calo. 1860),
8 Moo. I. A. 164 ; Mutumwmy Jagavera Yettapa Naiker v. Vencata-s-
Ydtia (Madras, 1865), L. R. 1 P. C. 1.

(1) Ko Rhine v. Snadden (Bengal, 1868), 5 Moo. (N. S.) 67.

(m) Golam Ally v. Kalikisto Tagore (1872), 18 Suth. W. R. P. C.
299. Cf . Palgrave Co. v. McMillan (Nova Scotia), (1892) A. C. at 470.

(n) Rahimbhoy Habibbhoy v. Turner (Bomb. 1890), 15 Bomb. 155 ;
Frith v. Frith, (1906) A. C. 254.

214 THE PRACTICE OF THE PRIVY COUNCIL.

the circumstances in each particular case (o). In the event
of it appearing that the court below was right in holding
that the amount in dispute was below the appealable value,
the Judicial Committee may, upon it appearing that the
question affects some general right (p), recommend special
leave and either adjourn the hearing or hear the appeal
subject to an Order in Council being made by the Sovereign
on their recommendation that the appellant shall have
special leave to appeal. Upon such an Order being made,
the report of the Judicial Committee to the Sovereign upon
the hearing will go forward, upon which a further Order in
Council is drawn up in pursuance of the conclusions come to
by the Committee on the hearing. It is usual to file this
Order in the court appealed from.

Discretion wrongly exercised ~by Court teloiv. — Leave to
appeal has been given where the court below in considering
the amount to be fixed for security as a condition of the appeal
has gone into the merits of the case which are not then
properly before it, and has directed security to be given for the
sum awarded by the verdict as well as for the costs of the
appeal. Johnson v. Voight (Lagos, 1896), 75 L. T. 87. On
the other hand, where the court appealed from has properly
exercised its discretion and has fixed the conditions and
restrictions subject to which the appeal will be admitted, an
application for leave to appeal in contravention of those
conditions will not be entertained.

Special leave. The appeals which are the subject of special leave may be
Two classes, divided into two kinds or classes : — (A) Where leave to
appeal is sought purely as an act of grace because (1) the
court below (e.g., the Supreme Court of Canada) does not
possess power to grant leave to appeal, or (2) because the
case is not within the grant to the colonial court ; (B) where
the appellant seeks by virtue of the statute 7 & 8 Viet. c. 69

(o) Allan v. Pratt (L. C. 1888), 13 App. Ca. 780.

(p) Gungowa Rome Malupa v. Erawa Rome Jogapa (Bombay,
1870), 13 Moo. I. A. 433. See Ranee Surut Soondree Debea v. Baboo
Prosonno Coomar Tagore (Bengal, 1870), 13 Moo. I. A. 607. In Bromi
v. McLaugJian (South Australia, 1870), L. R, 3 P. C. 458, special leave
to appeal was allowed on the ground that the question involved the
construction of a Colonial Act which affected the interests of a large
class in the colony. The appeal was limited by the order to the
construction of the statute.

APPEAL BY SPECIAL LEAVE. 215

to avoid having recourse to an intermediate appeal to a
Court of Error or a Court of Appeal within the colony.

(A) Where have to appeal is sought as an Act of Grace (I.) Special
— In a few possessions no rules of appeal from the judgment grounds,
of the local courts exist and an appeal can only be brought
by special leave, as from Sarawak ; or the court from which
appeals were brought may cease to exist and appeals from
the colony can only be brought by special leave pending a
first Order in Council or charter.

Where no rules of appeal existed in Heligoland, leave was In absence
granted, there being no question as to the adequacy of the of &rant-
amount in dispute (q).

So in New South Wales, where the Court of Appeal from Where court
which an appeal had been given by the charter of 1823
cea.sed to exist, the Privy Council in several cases (r)
granted leave to appeal in pursuance of 7 & 8 Viet. c. 69.
Appeals from the Supreme Courts of Canada and South s. C. of
Africa can only be brought by special leave. Canada.

(II.) Questions ivhich have not a ceriain Pecuniary Value. Question
—Where the charter of justice did not give a right to appeal
in matrimonial causes, the Judicial Committee, under the
general powers reserved by the charter to the Crown,
granted leave to appeal. No special merits need be shown
where the question concerns the validity of marriage, title
to dower, questions of legitimacy, the status of the issue, or
the custody of children, which are all civil rights, and may
be said to be beyond pecuniary value (s). In D'Orliacv.
D'Orliac, Lord Brougham said it was monstrous to say you
might appeal for 1,000?. and not in a case where legitimacy
is involved (s).

(q) Siemens v. Heirs of Bufe (Heligoland, 1856), 11 Moo. 62. And
see Henderson v. Henderson (Newfoundland, 1843), 4 Moo. 259.

(r) Flint v. Walker (X. S. W. 1847), 5 Moo. 179 ; Bank of Austra-
lasia v. BreiUpt (N. S. W. 1847), 6 Moo. 152 ; Marchioness of Bute and
Others v. Mason and Other* (X. S. W. 1849), 7 Moo. 1.

(s) HuLm v. Hulm (Mauritius, 1843), 4 Moo. 262 ; D'Orliac v.
D'Orliac (Mauritius, 1844), 4 Moo. 374 ; Shire v. Shire (Mauritius,
1845), 5 Moo. 81. See also Churchvxirdens of St. George, Jamaica v.
May (Jamaica, 1858), 12 Moo. 282 ; In re Skinner (X. W. P. 1870),
L. R. 3 P. C. 451 ; 7 Moo. (X. S.) 296 ; Le Meunier v. Le Meunier
(Ceylon), (1894) A. C. 283; Le Mesurier v. Le Mesurier (Ceylon),
(1895) A. C. 517, where the Supreme Court dismissed a suit for divorce
and refused leave to appeal; Lemmv. Mitchell (Hong Kong, 1912).
It has been pointed out that now most colonial courts have power
to admit an appeal in these cases.

216 THE PRACTICE OF THE PRIVY COUNCIL.

Of general Rights of great Public Interest. — The Royal Court of

ance1C lmport" Guernsey refused seven parishioners leave to appeal from an
assessment made on real and personal property, of sums
varying from 13Z. 17s. Qd. to 40/., and amounting in all to
169?. 18s. 9d. The sums in question were both separately
and collectively below the amount fixed for ordinary appeals.
The Judicial Committee gave leave, as the question affected
the rights of the whole parish (t).

Where the matter is of a substantial character and of
great public interest, as, for example, the rights over the
streams which flow down to the Ottawa River, special leave
will be given. Caldivell v. McLaren, 9 A. C. 392. So
where the question was whether the gold and silver minerals
in the " Railway Belt " in British Columbia are vested in
the Crown as represented by the Government of the
Dominion, or in the Crown as represented by the Govern-
ment of the Province. Att.-Gen. of British Columbia v. Att.-
Gen. of Canada (1889), 14 A. C. 295. Where leave has been
granted on the ground that the matter is one of general
importance, the parties will not be permitted to argue the
case at the hearing on a question of fact. Corp. of St. John's
v. Central Vermont Railway (S. C. Can. 1889), 14 A. C. 590.

A matter may, however, be of considerable importance to
the litigants concerned and be calculated to attract public
attention, yet its determination may not affect any other
interests than those of the parties, nor be decisive of any
general principle of law. In these circumstances the Board
will consider whether the case is of such importance or of
such nicety as to require in the interests of justice that the
judgment shall be reviewed. Dumoulin v. Langtry (Can.),
P. C. Arch. June 18, 1887. Cf. Macmillan v. Grand Trunk
Railway Co. of Canada, P. C. Arch. May 17, 1889.

Academic Questions. — "It is not the province of the
Judicial Committee to debate or resolve academic questions."
Therefore, where it was urged that the Supreme Court of
Natal had laid down the proposition, that under no conceiv-
able circumstances could that court interfere with the pro-
ceedings of the town council in issuing or refusing licences,

(0 In re T upper (Guernsey, 1834), 2 Knapp, 201 ; and cf. Martyn
v. M'CuOock (Guernsey, 1837), 1 Moo. 308.

APPEAL BY SPECIAL LEAVE. 217

however improper their proceedings might be, their lord-
ships refused to express their opinion upon the general
proposition, which was not necessary for their decision.
Vanda v. Mayor of Newcastle, 79 L. T. 600. (M., too, Alt.-
Gen. for Ontario v. Hamilton Street Railway, (1903) A. C.
520, where it was declared that it was not their lordships'
practice to give opinions on speculative questions submitted
to them.

Special leave will not be granted to appeal from a judg- Abstract
nient which is not impeached merely with a view to have ng '
an abstract point of law not arising in the case decided by
the Judicial Committee. R. v. Lomv, Ex parte the Att.-Gen.
for the Cape of Good Hope, (1904) A. C. 412.

The respondent in the appeal had been found guilty and
sentenced, but a special point of law was reserved for the
Supreme Court of the Cape of Good Hope, and though that
court upheld the conviction, the majority of the judges
were of opinion that there had been a misdirection, and
that the presiding judge at the trial had ruled out a
defence which might have been open to the prisoner.

The petitioner contended that the doctrine laid down by
the Supreme Court, which involved the question of whether
a rebel in arms was entitled to the rights of a belligerent,
should not be allowed to stand, but as there was no judg-
ment or determination of the Supreme Court but only an
expression of opinion which was sought to be reversed,
special leave to appeal was refused.

But where the decision appealed from has caused per- Allter, where
manent injury to character, though the effect of the Character
sentence has been concluded, leave to appeal may be granted.
In the Petition of F. W. Quarry, L. R. 7 I. A. 6. (See p. 220.)

Court below acting without Jurisdiction. — Special leave Absence of
was granted to appeal where the allegation on behalf of the 3urisdiction.
Crown was that the Supreme Court, in quashing an order
forfeiting recognizances of sureties made by a police
magistrate, had acted without jurisdiction (u). Where the
Court of British Guiana had treated the publication of
letters in newspapers by a barrister criticising the adminis-
tration of justice as a contempt of court, the Judicial
Committee recommended special leave to appeal, as it
(u) The Queen v. Price (Ceylon, 1854), 8 Moo. 203.

218

THE PRACTICE OF THE PRIVY COUNCIL.

Decision
determining
several suits.

Questions of
revenue.

appeared primd facie that it was not within the competency
of the court to deal with the case as one of contempt. In re
De Souza, P. C. Arch. December 1, 1888. Of. In re M. A.
Taylor, TJie Times, December 2, 1911, and 105 L. T. 974.

Several Suits taken conjointly exceed the Appealable
Amount. — Where the suits are substantially for the same
matter, and involve the same questions, and the court below
has pronounced as its decision one judgment which is to
determine all the suits, the Privy Council may give leave to
appeal. It has directed in such a case that if the parties
should, within two months, agree that all the suits were
to abide the event of the appeal in the first suit on the
list, the record of the first suit only should be transmitted
to this country ; otherwise that all the records should be
transmitted (x). So where many other suits depended upon
the decision (y).

Public Revenue concerned. — Where the rights of the
Crown were concerned in the application of Her Majesty's
revenue, arising in the island, leave to appeal from Jersey
was granted, although the sum in dispute was 45/. 12s. and
the appealable amount was 80/. (z). So where a very
important question as to the jurisdiction of the Supreme
Court of Bombay in matters of revenue was involved,
the Judicial Committee allowed the East India Company
to appeal, although the amount in question was only
Rs. 250, the appealable amount being Rs. 10,000, on the
terms that the company paid the respondent's costs of
appeal (a).

Important Point of Law. — Under the special circum-
stances of the case, an important point of law being in
dispute, the Judicial Committee have recommended the
granting of leave to appeal, although the amount in question

(x) Baboo Gopal Lall TJiakoor v. Teluk Chunder Eai (Calc. 1860),

7 Moo. I. A. 548 ; Ko Rhine v. Snadden (Bengal, 1868), L. R. 2 P. C.
50.

(y) Joykissen Mookerjea v. Collector of East Burdwan (Calc. 1860),

8 Moo. I. A. 265.

(z) Att.-Gen. of Jersey and Others v. Capelain (1842), 4 Moo. 37.
See, further, Undo v. Barrett (Jamaica, 1856), 9 Moo. 456 ; Church-
wardens of St. George, Jamaica v. May (1858), 12 Moo. 282 ; In re
Att.-Gen. of Victoria (1866), 3 Moo. (N. S.) 527.

(a) Spooner v. Juddow (Bombay, 1850), 6 Moo. 257.

APPEAL BY SPECIAL LEAVE. 219

was less than the appealable amount (b). But where the
judgment from which leave to appeal is made is not attended
with doubt, the Judicial Committee will not recommend the
granting of the petition. De Jager v. Alt. -Gen. of Natal,
(l'.»<>7) A. C. 326.

Question of Constitutional Interest. — Several verdicts had Questions of
been obtained against the Crown in a colonial court, and the
points involved in all the cases were the same, and materially
concerned the rights of the Crown and the duties of the
Governor. The Privy Council, although the value was in
two of the cases below the appealable amount, permitted the
Attorney-General to appeal, the appeals being consoli-
dated (c). Where the Attorney-General of a colony had
exhibited a criminal information against a person for an
assault, which he charged to be a contempt of the local
legislature, and the colonial court had allowed a demurrer to
the information, the Committee gave the Attorney-General
leave to appeal (rf). So also where a question involved a
principle of general local application, and of local importance
in judicial proceedings (e). So where the construction of a
Colonial Act was in question, leave to appeal was granted,
though only as to that part (/). Cf . Exparte Gregory, (1901)
A. C. 128.

Where Leave granted lelow is a Nullity. — If the court Where leave
below grants leave to appeal in a case which for any reason
is not appealable (#), or has granted leave in contravention
of the orders regulating the appeal practice, the permission
is a mere nullity. In such cases it is necessary to obtain
special leave to appeal from the Sovereign in Council (//).

(b) CaMrique v. Buttigieg (Malta, 1855), 10 Moo. 94 ; Kerakoose v.
Brooks (Madras, 1860), 14 Moo. 452 ; Rogers v. Rajendro Duth (Calc.
1860), 8 Moo. I. A. 103 ; Sun Fire Office v. Hart (of general importance
to insurance offices) (Windward Islands, 1889), 14 A. C. 98.

(d) Att.-Gen. of New South Wales v. Macpherson (N. S. W. 1870),
7 Moo. (N. S.) 49.

(e) Emery v. Binns (Jamaica, 1850), 7 Moo. 195.

(/) Brown v. McLaugnan (South Australia, 1870), 7 Moo. (X. S.)
306.

(g) Morgan v. Leach (Bombay, 1841), 3 Moo. 368 ; D'Orliac v.
D'Orliac (Mauritius, 1844), 4 Moo. 374 ; Shire v. Shire (Mauritius,
1845), 5 Moo. 81 ; In re M ladras, 1847), 6 Moo. 43.

(h) Retemeyer v. Obermuller (Berbice, 1837-8), 2 Moo. 93.

220

THE PRACTICE OF THE PRIVY COUNCIL.

Omission to
ask leave
below.

Where

jurisdiction

doubtful.

Injury to
character.

Where the East India Company omitted to appeal from the
decree determining the rights of the parties and directing
consequential inquiries until after the inquiries had been
held in Chambers, and the six months within which the
time to appeal from such final decree had expired, the
Judicial Committee refused to recommend that leave to
appeal should be given until they had been satisfied of the
reason for the delay («').

The Supreme Court of Nova Scotia having given the
appellant leave to appeal in a criminal case the respondent
petitioned His Majesty in Council that the orders admitting
the appeal might be set aside, and on the hearing of these
petitions the Judicial Committee directed them to stand
over till the hearing of the appeal with instructions that if
at the hearing there should appear to be substantial doubt
as to whether the appeals were or were not properly brought
without special leave, and their lordships should then be of
opinion that it was a case for granting special leave, they
would be prepared to order accordingly. Subsequently the
Committee decided to hear the case on the footing that the
appellant had lodged petitions for special leave to appeal.
Townsend v. Cox, (1907) A. C. 214.

Injury to Character. — The High Court of the North West
Provinces suspended a yakeel for three months. Before his
application to the Judicial Committee for leave to appeal
was heard, this period had expired, but that fact alone, it
was intimated, would not induce the Board to refuse the
application, if a lasting stigma on a man's character had
been passed. The Judicial Committee being of opinion
that the High Court had acted within their jurisdiction,
declined to interfere. Petition of F. W. Quarry (1869),
L. R. 7 I. A. 6 ; cf. Petition of Doleance of N. (Jersey,
1879), 5 A. C. 346. The Judicial Committee have
granted special leave to appeal against an order of the
acting Chief Justice of a Crown colony directing the
petitioner, a barrister and solicitor of the Supreme Court of
the colony, to pay a fine of 100/. for alleged contempt of court
and against two orders of the Chief Justice, the first of which
imposed upon him a fine of 20?. and the second ordering his

(0 East India Co. v. Syed Ally, 1 Moo. I. A. 526.

APPEAL BY SPECIAL LEAVE. 221

name to be struck off the roll of barristers and solicitors. In
the Matter of M. A. Taylor, Times, November 14, 1910.

But where an appeal from an order of the court removing
the applicant from the roll of vakeels would have involved
indirectly an appeal from a conviction of forgery, the Privy
Council refused to admit it. In re Rajendro Nath Mukerji,
L. R. 26 I. A. '24-2.

Delay through mistaking Remedy. — Where land was seized Time for
in execution by a sequestrator in pursuance of a decree
against A., and B. presented a petition in the suit claiming
the land, which was dismissed, and then B., instead of
appealing, filed a bill asserting his right to the land to
which a demurrer was allowed : though the time for appeal-
ing from the order in the original suit had expired, B.
obtained special leave from the Judicial Committee upon
the ground that he had mistaken his remedy (&).

Delay -while obtaining Advice. — Where heavy accounts
were involved, and a correspondence between persons in
India and in England became necessary respecting proofs,
and counsel in England had to be consulted as to the
expediency of appeal, and the appeal limit had expired,
special leave was granted (I).

Ladies. — But where there has been neglect in complying
with the conditions of appeal, the right will become for-
feited (m). So where, in a case relating to the revenues of
the Crown, no appeal was prayed within the time limited,
and no step taken for two years, special leave was refused.
The Judicial Committee held that the Crown had no greater
right in a general case involving its interests, to come in after
such a delay than the subject (ri).

Poverty. — Where there has been excessive delay and
laches, poverty alone will not form sufficient grounds for
special leave (#). But where a man had been fined for a
breach of the Revenue Laws and the court below had
refused to hear him because he was unable to give security
for costs and refused him liberty to appeal, the Judicial

(k) In re Mushadee Mahomed Cazum Sherazee (Bombay, 1852),
7 Moo. 391.

(I) McKellar v. Wallace (Calc. 1853), 8 Moo. 378.

(m) See Ex parte Kensington (Leeward Islands, 1863), 15 Moo. 209.

(n) Laing v. Ingham (Mauritius, 1839), 3 Moo. 26.

(o) In re Sarchet (Guernsey, 1857), 10 Moo. 533.

222

THE PRACTICE OF THE PRIVY COUNCIL.

Delay in

prosecuting

cross-appeal.

Non-com-
pletion of
conditions
through
circumstances
out of control
of appellant.

Committee gave him special leave to appeal in formd
pauperis (p). And where leave to appeal was obtained on
an ex parte application, and the appellant having taken no
steps to prosecute the appeal or perfect the security ordered,
the respondent filed a counter-petition to revoke the leave to
appeal, the Judicial Committee imposed further and more
stringent terms on the appellant, increasing the security and
ordering him to lodge his appeal within six weeks.

Where the High Court of India had refused to admit
an appeal from a decree given three years previously, on the
ground that the delay which was attributed to filing the
appeal in a wrong court was not under the circumstances
sufficient cause for not appealing in due time, the Judicial
Committee upheld the order and refused special leave to
appeal. Ram Narain Joshi v. Parmeswar Mahta, L. R.
(1902), I. A. p. 20.

Delay in Prosecuting Cross-appeal. — Where, by mistake,
the respondents failed to lodge their cross- appeal in time,
the Judicial Committee granted them special leave to enter
and prosecute their cross-appeal on giving the regular
security for costs (q).

So where in a case of maritime collision there had been
cross-actions, and the owners of one of the ships were pre-
pared to abide by the decree if their adversaries did so ; but
the owners of the other ship appealed, and did not inform
the owners of the first ship until after the time for appealing
had expired : the owners of the first ship, having been guilty
of no laches, obtained leave to appeal (r).

Non-completion of Conditions, where no Laches. — A
person desirous of appealing from a judgment of the Royal
Court of St. Lucia had used every effort to perfect his
securities within the time limited by the Order in Council
by which appeals were then governed, and had in fact per-
fected them ; but the court, owing to the suspension and
removal of judges, was not legally constituted at the time.
When the court was again duly constituted it dismissed the
appeal, on the ground that security had not been given

36.

(p) George v. The Queen, 4 Moo. (N. S.) 287.

(q) Nana Narain Rao v. Hurree Punt Bhao (N. W. P. 1856), 11 Moo.

(r) The Mceander (1862), 1 Moo. (N. S.) 42.

APPEAL BY SPECIAL LEAVE.

223

within the proper period. The Privy Council granted leave
to the appellant to prosecute his appeal ; and it was ordered
that all proceedings against him, in consequence of the
judgment, should be stayed until the hearing of the appeal
or further order to the contrary ; without prejudice to the
power of the opposite party to contest his right to his appeal at
a future stage of the proceedings. Upon the appeal coming
on for hearing, a preliminary objection was taken by the
respondents, on the ground of irregularity in not perfecting
the security in the court below, and the consequent absence
of any security as required by the Order in Council. The
Judicial Committee, however, overruled the objection, and
directed the appeal to be proceeded with, the appellant
undertaking to give security for costs to the amount
of 300/. (s).

(B) Where the appellant seeks to appeal from a court of Special leave
first instance he must obtain special leave to appeal by a
petition to His Majesty in Council. This may happen
either where the court below does not possess power to grant
leave to appeal or where the appellant desires to appeal
direct from the colonial court of first instance instead of
having recourse to an intermediate Court of Error or Court
of Appeal within the colony. The statute enables the
Sovereign to admit an appeal from colonial courts other than
those to which the right of admitting an appeal has been
delegated ; and the power can be exercised notwithstanding
that the function of framing provisions on the subject of
appeal has been granted to the colonial legislature. The
Judicial Committee only entertain appeals direct from a
court of first instance in the colonies where a question
of law is raised by the proceedings. Harrison v. Scott, 8
Moo. 357. But it is noteworthy that there are few if any
modern cases where the right of granting special leave in
such circumstances has been exercised. A few examples,
however, are given from old decisions of the Judicial
Committee.

Where there is a point of Law wkwh deserves Discussion. —
In several cases from Jamaica, the Privy Council granted
leave to appeal to the Queen in Council directly from the

(«) Inglis v. De Barnard (St. Lucia, 1841), 3 Moo. 425.

224 THE PRACTICE OF THE PRIVY COUNCIL.

Supreme Court, without an intermediate appeal (which
would have been attended with much expense and delay) to
the Court of Error in the island. In each of those cases
there was manifestly some point of law raised which deserved
discussion (/).

Where a Question of Principle is involved. — An appeal was
allowed, where a man had brought an action of trespass for
assault and false imprisonment in the Supreme Court
(Jamaica), laying his damages at 3,OOOZ., and had recovered
40s. damages ; and the question was, whether under certain
local Acts, a man could, by laying damages at an extrava-
gant sum, enable himself to sue in the Supreme Court and
recover Supreme Court costs, although the verdict he
recovered was within the pecuniary limits of the juris-
diction of an inferior court, and would have entitled
him, if he had sued in that court, to costs upon a lower
scale (u).

Appeal from There is no right of appeal by right of grant from special
martial tribunals, and leave to appeal from their sentences will

not be given except in a strong case. Special leave to
appeal will not be granted from the judgment affirming
acts done by the military authorities in a district where
martial law has been proclaimed. Ex parte Marais,
(1902) A. C. 109,

Where the colonial legislature had passed an Act of
Indemnity covering the sentence of the military authorities
and confirming their special Acts, leave to appeal from a
sentence was refused. Tilonlco v. Att.-Oen. of Natal, (1907)
A. C., pp. 93 and 461.

A subsequent petition of the same appellant to appeal
from a judgment of the Supreme Court of Natal dismissing
his application which questioned the legality of his detention
in gaol was likewise rejected and for the same reason. Ibid.,
p. 461.

In delivering judgment in the first case Lord Halsbury
pointed out that what is called martial law is no law at
all. If there is war, there is the right to repel force by

(t) In re Barnelt (Jamaica, 1844), 4 Moo. 453 ; Harrison v. Scott
(Jamaica, 1846), 5 Moo. 357 ; Att.-Gen. of Jamaica v. Manderson
(Jamaica, 1848), 6 Moo. 239.

(u) Emery v. Binns (Jamaica, 1850), 7 Moo. 195.

APPEAL BY SPECIAL LEAVE. 225

force, but it is found convenient and desirous from time to
time to authorise what are called ' courts ' to administer punish-
ment and to restrain by acts of repression the violence that
is committed in time of war instead of leaving such punish-
ment and repression to the casual action of persons acting
without sufficient consultation. . . . But to attempt to make
these proceedings of so-called 'courts-martial' administering
summary justice under the supervision of a military com-
mander analogous to the regular proceedings of courts of
justice is quite illusory. Appeals do not lie to His Majesty
in Council from such tribunals, and his intercession can only
be invoked, if at all, by a petition for special reference."

A petition for special leave to appeal direct to the Privy
Council from the sentence of a court-martial in Natal was
dismissed on the ground that, martial law having been pro-
claimed by the executive government of the colony and
there having been no application to the court of the colony,
the application was in substance an appeal from the act of the
executive in which the Judicial Committee had no jurisdic-
tion. Ex parte Mgomini, 94 L. T. 558 ; 22 T. L. R. 413.

PETITIONS AND APPEALS IN FORMA
PAUPERIS.

Security has to be given in all appeals in the Privy Council Petition,
by the appellant, unless leave be given to appeal in forma
pauperis. Such leave can only be obtained from the Judicial
Committee by a petition for special leave brought in accord-
ance with the Judicial Committee Rules ; but application
for leave to appeal must first be made within due time to
the court below.

The rales as to petitions for leave to appeal in formd judicial
pauperis provide as follows ; S^"11"66

8. Eules 3 to 1 (w) (both inclusive) shall apply Petitions for
mutatis mutandis to petitions for leave to appeal in
forma pauperis, but in addition to the affidavit referred
to in rule 4 every such petition shall be accompanied peris'
by an affidavit from the petitioner stating that he is not
worth 25Z. in the world excepting his wearing apparel

(w) See above, pp. 207—8, and Chapter VIII., pp. 257, ff.

p.c. 15

226

THE PRACTICE OF THE PRIVY COUNCIL,

Exemption
of pauper
appellant
from lodging
security and

Exemption of
unsuccessful
petitioner
for leave to
appeal in
forma pau-
peris from
payment of
office fees.

Certificate of
poverty.

Application
to court
below.

and his interest in the subject-matter of the intended
appeal, and that he is unable to provide sureties, and
also by a certificate of counsel that the petitioner has
reasonable ground of appeal.

9. Where a petitioner obtains leave to appeal in
forma pauperis, he shall not be required to lodge
security for the costs of the respondent or to pay any
Council Office fees.

10. A petitioner whose petition for leave to appeal
in forma pauperis is dismissed may, notwithstanding
such dismissal, be excused from paying the Council
Office fees usually chargeable to a petitioner in respect
of a petition for leave to appeal, if His Majesty in
Council, on the advice of the Judicial Committee, shall
think fit so to order.

The applicant for leave to appeal as a pauper must there-
fore state succinctly all the main facts of the case as well as
the facts of his poverty, and three copies of the petition and
the affidavits must be lodged together with copies of the
certificate of at least one counsel that he has reasonable
grounds of appeal. The fact that the certificate is only
signed by a counsel who appeared at the original hearing
and not by any independent counsel is not sufficient reason
for refusing leave. Mitchell v. New Zealand Loan Co.,
(1904) A. C. 149. The Judicial Committee must be satis-
fied of the poverty, and the petition should state that the
applicant has no funds to provide security for costs.
Cf. Brouard v. Dumaresque, 3 Moo. 457 ; and 6 Moo. 412.

Where the court below has power to grant leave on the
usual conditions, the Judicial Committee will not in general
entertain a petition for leave to prosecute an appeal in forma
pauperis, unless in the first instance an application for leave
to appeal has been made within due time to the court from
which it is proposed that the appeal should be brought.
The Judicial Committee refused an application for leave to
appeal from a decision of the Supreme Court of New South
Wales where no application for leave to appeal within due
time to that court had been made. Walker v. Walker,
(1903) A. C. 170.

APPEAL BY SPECIAL LEAVE. 227

Special leave to appeal in formd pauperis was granted
where a colonial Code made no provision for appeals in that
form, and the total value of the subject-matter of litigation was
greater than the minimum appealable amount. Ponnamma
v. Arumogam, (1902) A. C. 561. Where leave to appeal was
obtained in the regular form, the appeal may be presented
in formd pauperis. Pollard v. Harragin, (1891) A. C. 454;
Quinlan v. Child, (1900) A. C. 496.

But if it appears that there is no real question of fact, Consideration
the Order in Council granting leave to appeal in formd of ments-
pauper-is will be rescinded. Quinlan v. Quinlan, (1901)
A. C. 612.

On the hearing of petitions of this kind the Judicial
Committee occasionally deem it right to enter into con-
sideration of the merits of the case. Kishen Dutt Misr v.
Tamesivar Par shad (1879) Wheeler's P. C. 86 ; Quinlan v.
Quinlan, (1901) A. C. 612; Mitchell v. The New Zealand
Loan Co., (1904; A. C. 149.

It is their regular practice to do so in an appeal in a
criminal case. In re Lillet, 12 A. C. 459.

The petition will not be granted unless the petitioner
shows a good primd facie case for appeal. Paddington v.
Sidgiviclc, The Times, December 17, 1909.

When the object of the appeal is to try a public right,
the petition will not be granted. Bowie v. Marquis of Ailsa,
13 A. C. 371.

The Judicial Committee will admit an appeal by a next Next friend,
friend in formd pauperis where the petitioner is a pauper
and a native of India, or of any other country, and cannot
speak English (x). The Judicial Committee will allow the
appearance of a next friend in formd pauperis where a
solvent next friend cannot be found for a minor appellant (y).

A petitioner in formd pauperis cannot be relieved from Relief
the expenses of preparing and printing the record in the obtained-
appeal. He will, however, not be required to pay any fees

(x) See Kishen Dutt Misr v. Tameswar Parshad, P. C. Ar. June 14,
1879.

(y) Gaudin v. Messervy (Jersey, 1864), 2 Moo. (N. S.) 372, where a
person was interested in a fund in Chancery, and there was no prospect
of an immediate or early payment, she was considered as destitute of
funds and allowed to appeal in forma pauperis ; Bishop v. Wildbore,
9 Moo. 408.

15—2

228

THE PRACTICE OP THE PRIVY COUNCIL.

Costs.

Respondent
in forma
pauperis.

Respondent
defending
appeal
in forma
pauperis.

in the Privy Council Office. Sometimes their lordships
think it right that a pauper, when successful in his appeal,
should have his costs ; but these are only allowed on the
footing of an appeal, in form, from the date on which the
petitioner is admitted, on the recommendation of the Board,
to appeal as a pauper (z). See p. 336.

The rule of the House of Lords as to costs in pauper
cases will be adopted by the Privy Council. Wastemys v.
Wasteneys, (1900) A. C. 446.

The court fees are regularly remitted if application is
made. Walker v. Walker, (1903) A. C. 172.

A respondent may obtain leave to defend an appeal in
forma pauperis in the same circumstances and under the
same conditions as an appellant may obtain leave to bring
the appeal.

Rule 44 provides :

A respondent who desires to defend an appeal
in forma pauperis may present a petition to that effect
to His Majesty in Council, which petition shall be
accompanied by an affidavit from the petitioner stating
that he is not worth 25?. in the world excepting his
wearing apparel and his interest in the subject-matter
of the appeal.

A respondent was allowed to defend the appeal in formd
pauperis in Spurrier v. La Cloche, a case which came from
Jersey, (1902) A. C. 446.

Criminal Appeals.

Criminal law. The criminal law is administered in accordance with the
principles of the common law of England throughout the
British Empire. The criminal law can be varied within the
empire by the legislative authority, and in foreign jurisdic-
tions of the Crown without the empire it can be varied
by the Crown, the sole legislative authority in such
matters (a).

(z) See Pollard v. Harragin (Trinidad), (1891) A. C. at p. 454 ;
M'Kensie v. Brit. Linen Co. (H. L. 1881), 6 A. C. 113 ; Mackie v.
Herbertson (H. L. 1884), 9 App. Cas. 344.

(a) Ex parte Carew (Japan), (1897) A. C. 719.

APPEAL BY SPECIAL LEAVE. 229

The Inherent Prerogative. — " Upon principle, and refer-
ence to the decisions of this Committee," it was said in the
course of the judgment of the Judicial Committee in Reg. v.
Ikrtrainl (&), " it seems undeniable that in all cases, criminal
as well as civil, arising in places from which an appeal would
lie, and where, either by the terms of a charter (c) or statute,
the authority has not been parted with, it is the inherent
prerogative right, and, on all proper occasions, the duty of
the Queen in Council to exercise an appellate jurisdiction,
with a view not only to ensure, so far as may be, the due
administration of justice in the individual case, but also to
preserve the due course of procedure generally. The interest
of the Crown, duly considered, is at least as great in these
respects in criminal as in civil cases ; but the exercise of this
prerogative is to be regulated by a consideration of circum-
stances and consequences ; and interference by Her Majesty
in Council in criminal cases is likely, in so many instances,
to lead to mischief and inconvenience, that in them the
Crown will be very slow to entertain an appeal by its officers
on behalf of itself or by individuals. The instances of such
appeals being entertained are, therefore, rare. The opinions
stated by this Committee in the following cases : Ames et al.9
8 Moo. 409 ; The Queen v. Joykissen Mookerjee, 1 Moo.
( X . s.) 272 ; The Falkland Islands Co. v. The Queen, 1 Moo.
(X. S.) 299, establish this position. The result is that any Difficulties in
application to be allowed to appeal in a criminal case comes tn.e ™7 of a
to this Committee labouring under a great preliminary appeal*
difficulty — a difficulty not always overcome by the mere
suggestion of hardship in the circumstances of the case ;
yet the difficulty is not invincible. It is not necessary to Grounds for
attempt to point out all the grounds which may be avail- criminal
able for the purpose ; but it may safely be said, that when stated1 in8
the suggestions, if true, raise questions of great and general
importance, and likely to occur often, and also where, if Ca*e'
true, they show the due and orderly administration of the

(b) (N. S. W. 1867), L. R. 1 P. C. at pp. 529 et seq.

(c) It would seem open to question whether the Crown can, without
the sanction of Parliament, abandon the prerogative right to hear
appeals from subjects. Cf. Reg. v. A lloo Paroo (Bombay, 1847), 3 Moo.
I. A. 488, per Lord Brougham. Such an abandonment must certainly
be in express terms: see TJitberge v. Laudry (Low. Can. 1876), 2 App.
Cas. at p. 106.

230

THE PRACTICE OF THE PRIVY COUNCIL.

Questions of
great and
general
importance.

Due admin-
istration of
justice
interrupted.

Adminis-
tration of
justice
diverted into
new course,
creating a
precedent.

flules stated
in Kiel's Case.

law interrupted, or diverted into a new course, which might
create a precedent for the future, and also where there is no
other means of preventing these consequences, then it will
be proper for this Committee to entertain an appeal, if referred
to it for its decision " (d).

The Judicial Committee, in the above case, gave leave to
appeal on the terms that the prisoner remained in prison
until delivered in due course of law (e). The judge at a
second trial had irregularly, instead of taking the evidence
of the witnesses anew, read the notes of evidence taken
by him at the prior trial of the prisoner, when the jury,
being unable to agree, had been discharged.

It is the usual rule of the Judicial Committee not to
grant special leave to appeal in criminal cases, except when
some clear departure from the requirements of justice is
alleged to have taken place (/), and " it is shown that by a
disregard of the forms of legal process, or by some violation
of the principles of natural justice, or otherwise, substantial
and grave injustice has been done " (g). Special leave to
appeal on these principles was allowed in Dillefs Case, on
the ground stated in the petition for leave to appeal, that
the conviction was obtained in a manner so unsatisfactory
that the conviction alone ought not to be conclusive as
a ground for striking the petitioner off the roll. The
defendant was a barrister and solicitor, and appealed against
his conviction on a charge of perjury and the consequential

(d) Reg. v. Bertrand (N. S. W. 1867), L. R. 1 P. C. 529.

(e) Ibid., p. 525.

(/) Riel v. The Queen (Manitoba, 1885), 10 A. C. 675. As to appeal
on a case reserved, see Reg. v. Coote (Quebec, 1873), L. R. 4 P. C. 599.
For instance of such leave being refused, see In re Macrae (Allahabad),

(1893) A. C. 346.

(g) See the celebrated judgment delivered by Lord Watson in
Dillefs Case (Brit. Hon. 1887), 12 A. C. 459 ; approved in Ex parte
Deeming (Victoria), (1892) A. C. 422 ; Ex parte Kops (N. S. W.),

(1894) A. C. 652 ; and Ex parte Carew (Japan), (1897) A. C. 719 ; and
Tshingumuzi v. Att.-Gen. of Natal, (1908) A. C. 248. For an instance
of an appeal to remit part of a sentence, see Re Martin Fonaris
(Minorca, July 29, 1719), referred to in 1 Moo. 129. For a case in
which a point of law was reserved for the consideration of the
Sovereign in Council, Yusuf-ud-Din v. The Queen (Punjab, 1897), 76
L. T. 813, and a case in which misdirection was alleged, Gangadhar
Tilak v. The Queen (Bombay, 1897), L. R. 25 I. A. 1, may be seen.
In John Makin and Sarah Makin v. Att.-Gen. for N. S. W. (N. S. W.
1893), special leave Avas given to appeal from a judgment of the
Supreme Court upon a special case stated as to the admissibility of
evidence in a prosecution for child murder.

APPEAL BY SPECIAL LEAVE. 231

order striking off the rolls (h). Unless there is a departure Grounds for
from the broad principles of natural justice, an informality criminal
will not prevail to support an application for leave to appeal stated in
from a judgment in a criminal case (i). JHllefs Case.

Pardon. —Where the petitioner had been discharged from
prison before the hearing of the appeal the Judicial Com-
mittee dismissed the petition without costs. Cf. Levien v.
Reg., L. R. 1 P. C. 536.

It is a usual order to dismiss an application for special
leave to appeal from a criminal conviction without costs.

The following cases illustrate the practice of the Privy Recent
Council in dealing with appeals in criminal cases : criminal

In Alade v. TJie King special leave to appeal was refused
to a barrister convicted by the Supreme Court of the Gold
Coast of breach of trust because the case was not within the
principle in D-illefs Case, 1910.

Where the appellants who had been summarily committed to
prison for wilful and corrupt perjury before the Bankruptcy
Court had not been informed by the judge of what state-
ments made by them constituted the perjury, and had had no
opportunity of showing cause before sentence, special leave to
appeal was granted, and on the hearing, the committal order Disputed
was rescinded. Chang Hang Kiu v. Piggott, (1909) A. C. 312. evidence.

Where three appellants were convicted of the murder of
a female servant, and the case against them, so far as direct
evidence was concerned, depended entirely on the evidence
of another servant, aged fourteen, the Board held that the case
was not quite strong enough to warrant their interference with
the verdict. Ulungama Eugenie Hamia v. Regem, 1909.

In a case of disputed evidence on which the judges had
differed, special leave to appeal was refused to the convicted
man. It was impracticable, said the Lord Chancellor, to
think that the Board could judge better than those who had
heard the witnesses themselves. " The fact that there was
a difference of opinion among the judges is not a ground on
which by itself their lordships could act in a case like the
present." Tshingumuzi \.Att.-Gm. of Natal, (1 905) A. C. 248.

(h) Billets Case, p. 467. For other cases of striking off rolls, see Re
Monckton, 1 Moo. 455 (P. E. I. 1837) ; Emerson v. Newfoundland
Judges (Newfoundland, 1852), 8 Moo. 157 ; Re M. A. Taylor, 105
L. T. 974.

(i) Dinizulu v. Att.-Gen.for Ziduland (Zululand, 1889), 61 L. T. 740.

232

THE PRACTICE OF THE PRIVY COUNCIL.

Misde-
meanour.

Finality of
trial of
felony.

Delay. A petition for leave to appeal in a criminal case in which

more than three years had elapsed since the expiration of
the sentence on the petitioner, and no primd facie case of
miscarriage of justice was disclosed, was dismissed. The
petitioner had been convicted of criminal libel and sentenced
to seven months' imprisonment ; and the grounds alleged
for the delay were that he had no means in the interval.
Badger v. Att.-Gen. for New Zealand (IMS), 97 L. T. 621-

Special court. "Where a special court was established in the colony of
Natal to try persons accused of offences against the state
during the Boer war a petition for special leave to appeal
from a judgment convicting the applicant of high treason
was entertained but dismissed on the merits. De Jager v.
Att.-Gen. of Natal, (1907) A. C., p. 326.

In the Governor's Instructions in several of the West Indian
Colonies, an appeal was given in cases of misdemeanour where
the fine exceeded a certain sum. But it is doubtful if this
right would be permitted to-day. It has become obsolete.

There is no instance of a new trial being granted in a
capital case (#), and but one of a new trial in a case of felony,
where the power of the court to grant it was not argued.
This precedent the Judicial Committee has declined to
follow (/). " "When the jury have been brought together
and the prisoner has been given in charge and the trial has
commenced, the right course, if practicable, is that the jury
should give their verdict convicting or acquitting the
prisoner. "When the jury have once found a verdict of
conviction or acquittal, the matter has become res judicata,
and after that there can be no further trial " (m). These
remarks relate to a verdict returned upon a good indictment
for felony before a competent tribunal. There are, however,
cases of defeat of jurisdiction in respect of time, place, or
person, cases of verdicts so insufficiently expressed or so
ambiguous that a judgment could not be founded thereon (ft),
where an appeal has been allowed.

(k) Cf. Ex parte Carew (Japan), (1897) A. C. at p. 720.

(1) Reg. v. Scaife (1851), 17 Q. B. 238 ; E. v. Sertrand (N. S. W.
1867), L. R. 1 P. C. at p. 533 ; R. v. Murphy (N. S. W. 1869), L. R.
2 P. C. 535.

(m) Per Blackburn, J., in R. v. Winsor, L. R. 1 Q. B. 313.

(n) Att.-Gen.for N. S. W. v. Murphy (N. S. W. 1870), 21 L. T. N. S.
598 ; R. v. Murphy (N. S. W. 1868), 5 Moo. N. S. 47 ; and ibid. 6 Moo.
(N. S.) 178.

APPEAL BY SPECIAL LEAVE. 233

It was stated in the case of Reg. v. Byramjee (supra)
that it was contrary to the policy of the common law of
England to allow an appeal in a case of felony ; and though
since the foundation of the Court of Criminal Appeal in
England the right of bringing an appeal from a conviction
for felony in England has been established, the objections
urged in the Indian case to granting appeal from the
judgment of a colonial court in a capital matter still holds
good : " A long period must elapse before the application
to the Crown could be made and its decision could be known.
And eventually when the leave to appeal was refused (and it
must be presumed that this would generally be the case)
execution would follow the sentence at so long an interval
that all benefit to be expected from public example would
be lost ; and to this it may be added that in a great
majority of cases the criminals themselves would be kept in
a state of miserable suspense to suffer in the end the same
ignominious death to which they were sentenced." 3 Moo.
I. A. 482.

But where the jurisdiction of the court to entertain the
case was raised, leave to appeal was given in a capital case.
Nga Hoong v. The Queen (1857), 7 Moo. I. A. 72.

Technical Objections. — Technical objections, as on a writ Court not
of error, will not be encouraged, unless there has been a
departure from the principles of natural justice. An objection
that the court was not validly constituted, or had acted
without or beyond its jurisdiction, might constitute a ground
for special leave to appeal (0), but leave is not readily granted.
In such a case, a subject of His Highness the Nizam of
Haidarabad, in the Deccan, obtained special leave to appeal
to the Privy Council from the judgment or order of the
Chief Court of the Punjab dismissing the appellant's
application to have a warrant which had been issued against
him cancelled, and certain proceedings pending against him
before the District Magistrate quashed. The appellant had
been arrested within the dominions of the Nizam, under a
warrant for an offence alleged to have been committed at
Simla. The justification for the arrest was said to be a grant
made to the British Government by the Nizam of civil and

(o) Dinizvlu v. Att.-Gen. of Zuhdand, 61 L. T. 740 ; Rex v. Marais
(Natal), (1902) A. C. 104.

234

THE PRACTICE OF THE PRIVY COUNCIL.

Want of
jurisdiction
for arrest.

Contempt.

Prerogative
of mercy.

criminal jurisdiction along the lands occupied by a railway
within his territory. Upon the hearing of the appeal it
appeared that the grant did not subject persons thereon
to criminal procedure for offences committed elsewhere, and
the Judicial Committee recommended that the warrant of
arrest and proceedings should be set aside (p).

The Judicial Committee win not consider a case of fine or
imprisonment for contempt of court where no irregularity
appears and the punishment was appropriate (q). The
Judicial Committee cannot (semble) remit a fine for con-
tempt of court (q). The Judicial Committee cannot order the
release of anyone imprisoned for contempt of court pending
an appeal in the matter (r).

Their lordships have no power to make any judicial repre-
sentation to the Sovereign touching the exercise of the
prerogative of mercy. Any application for that purpose
must be made in some other quarter (s).

It is doubtful whether a criminal appeal can be brought
from Canada. (See p. 49.)

Conditions of Appeal. — The general conditions as to
security apply in criminal as in civil cases.

CONDITIONS ATTACHED TO SPECIAL LEAVE.

In granting special leave to appeal, the Judicial Com-
mittee will put the petitioner upon such terms as the cir-
cumstances of the case require (t). Occasionally it has been
made a term that the petitioner shall in any event pay the
costs of both sides (u).

Judicial Committee Rules as to Security. — The provision of
the Judicial Committee Rules on the subject of security
when special leave to appeal is granted is as follows :

(p) Syad Muhammud Yusuf-ud-Din v. The Queen (Punjab, 1897),
76 L. T. 813.

(q) McDermott v. British Guiana JJ. (1868), 5 Moo. (N. S.) 466 ;
Rainey v. Sierra Leone JJ. (Sierra Leone, 1853), 8 Moo. 47.

(r) Hughes v. Porral (Gib. 1842), 4 Moo. 41.

(s) In re De Souza (British Guiana, December 1, 1888), P. C. Arch.

(t) In re Sibnarain Ghose (Calc. 1853), 8 Moo. 276. The usual form
is upon " submitting to pay to the respondents their costs of the
appeal in any event if upon the determination of the appeal their
lordships shall so direct."

(u) Mair v. Stark (Victoria), 0. in C. November 17, 1888 : Shenton
v. Smith (W. Australia), O. in C. May 16, 1893.

APPEAL BY SPECIAL LEAVE. 235

6. Where the Judicial Committee agree to advise Security for
His Majesty to grant special leave to appeal, they transmission
shall, in their report, specify the amount of the of record,
security for costs (if any) to be lodged by the petitioner,
and the period (if any) within which such security is to
be lodged, and shall, unless the circumstances of a
particular case render such a course unnecessary,
provide for the transmission of the record by the
registrar of the court appealed from to the Registrar
of the Privy Council and for such further matters as
the justice of the case may require.

Usual Security required. — It is the practice of the Security.
Judicial Committee, in granting special leave to appeal, to
do that which the local courts are required to do when they
permit an appeal to be brought under a charter or other
grant, viz., to take security from the appellant to answer the
respondent's costs (v), and (where necessary) to ensure the
diligent prosecution of the appeal. Ordinarily the Judicial
Committee fix the security at 300/. Sometimes the Judicial
Committee require security, in addition, for the performance
of the decree, and the preservation of any property liable to
be affected by the litigation, and they impose such terms, in
all respects, as justice may seem to require (x).

The appellant is usually required to lodge in the Registry Security
of the Privy Council a certain sum. In some special cases retiuired-
the security has been fixed at 100?. as in appeals from the
Channel Islands and the Isle of Man. The amount deposited
may be sometimes increased on the respondent's petition,
where the transcript proves to be long (y). If the appeal
fails, the respondent's costs are paid out of the deposit
If it succeeds, the deposit is returned to the agent of the
appellant. The payment of this deposit is not required
until the arrival of the transcript record in England ; but
it must then be made immediately, because costs may be
incurred on behalf of the respondent. No security is
demanded in appeals admitted in for md pauper is.

(f) Alt. Gen. I. of Man \. Cowhy (1859), 12 Moo. 27.

(x) See Stace v. Griffith (St. Helena, 1869), 6 Moo. (N. S.) 18.

(y) Boswell v. Kilborn (Low. Can. 1860), 13 Moo. 47(5.

236

THE PRACTICE OF THE PRIVY COUNCIL.

Stay of execu-
tion.

Order where
judgment for
damages.

Where special leave was granted in the Bank of Austral-
asia v. Breillat, 6 Moo. at p. 169, it was said, " The admis-
sion of the appeal will of course stay the proceedings in the
court below." From more recent decisions it appears as if
a direction to that effect must at any rate be contained in
the order giving leave (z) .

Stay of Execution on Terms. — Where damages had been
given against the defendant (appellant), Her Majesty's
Order was that the petitioner should be at liberty to enter
and prosecute his appeal from the said judgment of, etc.,
upon depositing in the Registry of the Privy Council within
one month from the date of the report of the Council the
sum of 300?. sterling, as security for the costs of the
respondent in case the said appeal be dismissed ; and also
upon giving proper security within one calendar month
from the same date, to be approved by the Registrar of
the Privy Council, for the payment of the sum of 45 01.
awarded to the plaintiff by the said sentence in case
the said appeal be dismissed, or upon depositing the said
amount in the Registry of the Privy Council, the respon-
dent agreeing to suspend proceedings in his action pending
this appeal (a). The petitioner should satisfy the Judicial
Committee (1) that a serious injury will result to him
unless a stay is granted ; (2) that he has come promptly to
make application for stay (b).

In India, where the High Court indicated its opinion that
there should be a stay of execution pending appeal, an
Order in Council was made to that effect upon condition
that the petitioner should file his case and petition within
a fortnight from the receipt of the record ; and leave was
given to the respondent to apply to the High Court for the
appointment of a receiver or payment into court. Vasudeva
Modehaiv. Shadagopa Modehai (1906), 33 I. A., p. 132.

(z) Moheshchundra v. Satruyhgan (1899), 27 Calc. 1.

(a) Stace v. Griffith, 6 Moo. (N. S.) 18. See further Montaignac v.
Shitta, (Lagos, 1890), 15 A. C. 357 ; Secretary of State for India in
Council v. Nellacutti, August 10, 1888, P. C. Arch. ; Klingebial v.
Palmer (S. A. 1868), 2 S. A. L. R. 235, where the court below was
held to be unable to stay proceedings after special leave granted by
the Judicial Committee ; but it has been held that the High Court
in India has power to order a stay where special leave has been
granted (Nityamasi Da-ti v. Madhu Sudan Sen, 38 I. A 74).

(6) Nawab Sidhee Nuzur Ally Khan v. Rajah Oojoodhyaram Khan
(Bengal, 1865), 10 Moo. I. A. at p. 327.

APPEAL BY SPECIAL LEAVE. 237

Leave under 7 <fc 8 Viet. c. 69. — Where the Privy Council, Security
under statute 7 & 8 Yict. c. 69, s. 1, admits a special appeal ^
direct from the Supreme Court without proceeding to the 7 & 8 Viet.
Court of Error in the island, the Judicial Committee usually c- 69<
fix the amount of security for costs on the same terms as
when they Arrant special leave (c).

Tiitu' to Appeal expired. — A decree of the Supreme Court Security for
of Newfoundland was pronounced ex parte without notice to ^InUme
the defendant. The period of fourteen days allowed by the expired,
charter for applying to the court below having expired, he
obtained special leave to appeal from the Privy Council , on
terms of lodging his case within three months, and lodging
within thirty days from the date of the Order in Council
the certificates of recognizance to Her Majesty, in a penalty
of 18,100/. (being the sums declared due from him, with
about 300/. additional). Henderson v. H., 4 Moo. 259.

Where the Sudder Court of Bombay awarded, in execu-
tion of a decree of the Privy Council, interest upon the
amount found due to the plaintiff, and having given leave
to appeal, discovered that the six months allowed for appeal
had expired, and rescinded the leave, the Judicial Com-
mittee gave special leave to appeal on the terms of giving
security for the amount of the interest in question and
paying the costs of the application. KirTcland v. Modee
Pestonjee Khoorsedjee, 3 Moo. I. A. 224.

Appellant paying Costs in any Event. — The East India Appellant
Company obtained leave to appeal in a question as to the Payin& costs-
jurisdiction of the Supreme Court of Bombay in a matter of
revenue, although a very small amount (250 rupees) was at
issue, upon the company undertaking to pay all costs,
charges, and expenses of the respondent as well as of the
appellants (d).

Appeals by Public Officers. — Where leave to appeal was
obtained by a public officer representing the Crown, several
appeals were consolidated so as to make the proceeding as
little onerous as possible, and security was not required (e).

(c) See order in Re Barnett (Jamaica, 1844), 4 Moo. at p. 457 ;
Hitchem v. Hollingsworth (Jam. 1852), 7 Moo. 228 ; Att.-Gen. Jamaica
v. Manderson (1848), 6 Moo. 239.

(d) Spooner v. Juddow (Bombay, 1850), 6 Moo. 257.

(e) Att.-Gen. of Isle of Man v. Cowley, 12 Moo. 27 ; Att.-Gen. of New
South Wales v. Macpherson (N. S. W. 1870), 7 Moo. (N. S.) 49.

238

THE PRACTICE OF THE PRIVY COUNCIL.

Enforcing
conditions.

Vacating
security.

So also where the appeal was by the government of a colony
on a matter of petition of right (/).

Discharging Order for Leave. — Where the conditions on
which special leave to appeal has been granted are not
punctually complied with, the order granting leave may, on
petition, be discharged and the appeal dismissed.

Compromise pending Appeal. — In the case of a compromise
pending an appeal, the appellant may move the Judicial
Committee on petition, praying that the order granting
leave to appeal be dismissed and the recognizance
discharged (g).

The security entered into abroad is vacated upon dismissal
of the appeal for non-prosecution. If the appeal is restored
fresh security will be required (h).

The Supreme Court of Victoria granted leave to appeal
under the Colonial Act, upon the condition of the appellant
giving security by bond in a sum of 250/. The appellant
failed to complete the security within the time limited by
the Act, and the Supreme Court revoked the leave to
appeal ; in the circumstances the Judicial Committee
granted leave to appeal on the appellant depositing 300 /.
Liberty was given to apply to the Colonial Court to
cancel the security bond deposited (*').

On a petition to restore an appeal, the order was made on
the terms that the petitioner deposited in the Registry of the
Privy Council such sum as would, with the sum (if any)
already deposited in India as security for costs, make up
such security to 300?. The petitioner was ordered to pay
the costs of the petition (&).

(/) Robertson v. Dumaresq (N. S. W. 1864), 2 Moo. (N. S.) 90 ; In re
Att.-Gen.for Colony of Victoria (Viet. 1866), 3 Moo. (N. S.) 527 ; L. R.
1 P. C. 47. S. C. ; see Att.-Gen. of Manitoba v. M ., May 11, 1901.

(g) Reed v. Dabee (Calc. 1857), 11 Moo. 151.

(A) Ranee Birjobuttee v. Sing (Calc. 1860), 13 Moo. 465 ; and see
infra, p. 297.

(t) Webster v. Power (Victoria, 1866), L. R. 1 P. C. 150 ; 3 Moo.
(N. S.) 531.

(k) Muthu Bommaya v. Nainappa Chetty (Madras), P. C. Arch.
March 24, 1900.

CHAPTER VII.

CONCERNING 3IATTERS WHICH ARE THE SUBJECT OF SPECIAL
REFERENCE AND OF COMPLAINTS WITH RESPECT TO JUDGES.

BESIDES the appeals in which the appellant brings his
grievance before the Sovereign in Council as of right
and the appeals in which he has first to ask the Sovereign
to exercise the royal prerogative by granting in the particular
case permission to present a petition of appeal, there exists
the further class of appeals which are the subject of a
special reference to the Privy Council for their advice.
The appeals of the two first named classes are such as
complain of the determination of some court or judicial
officer. Such appeals come to the Sovereign because all
judicial power is derived from the Crown. Appeals which
may be heard on special reference are those which cannot
strictly come within either of the former classes. These
come to the Crown as the source and fountain of all justice,
and arise of that inherent right which is inseparable from
the supremacy of the Sovereign in the administration of the
laws, whether of a temporal, ecclesiastical, or military nature.

It has, accordingly, been well said, that it is the preroga- Exercise of
tive right, and therefore the duty of the Sovereign, as the ti^e
fountain of justice, "on all proper occasions, to see that reference,
justice is done " (a). The statute (3 & 4 Will. IV. c. 41) Statute.
which established the Judicial Committee of the Privy
Council (after having provided that all appeals, and com-
plaints in the nature of appeals, shall be referred to and heard
by the Judicial Committee (£) ) affirmed the Sovereign's
prerogative right to deal with petitions in all matters what-
soever (c). Sect. 4 of that statute declares " it shall be lawful
for His Majesty to refer to the said Judicial Committee for
hearing or consideration any such other matters whatsoever

(a) Supra ; Reg. v. Bertrand (N. S. W. 1867), L. R. 1 P. C. oJO.
(6) S. 3.
(c) S. 4.

240

THE PRACTICE OF THE PRIVY COUNCIL.

Matters other
than judicial
decisions.

Order of
special refer-
ence.

Terms of

special

reference.

as His Majesty shall think fit, and such Committee shall there-
upon hear or consider the same, and shall advise His Majesty
thereon in manner aforesaid." This wide and general
provision must of course be read subject to the limitation
and restriction declared by statute.

It is to be noticed that the matters to be thus specially
referred are any matters other than appeals, and complaints
in the nature of appeals, from a decision of any court,
judge, or judicial officer. If the matter complained of is
the determination of a court of justice, it might constitute
matter for an application for special leave to appeal under
7 & 8 Viet. c. 69, s. 1, but not for special reference under the
Act of 3 & 4 Will. IV. c. 41. Of the occasion upon which
such reference shall be made the Sovereign is sole judge (d).

The reference of a petition for advice may be either to the
Judicial Committee under sect. 4 of 3 & 4 Will. IV. c. 41,
or it may be to a general Committee of the Privy Council.
In the former case the Judicial Committee only possess
power to advise the Crown judicially, and will not enter into
considerations of policy ; but in the latter the Committee of
the Privy Council may advise the Crown acting in its
legislative capacity (e).

By the Appellate Jurisdiction Act, 1909, s. 5, the word
" appeals " in the section which enables His Majesty to make a
continuing order instead of an annual order, directing appeals
to be referred to the Judicial Committee, includes any com-
plaints in the nature of appeals, and any petitions in the
nature of appeals, and therefore partly covers the subject of
the old special reference. The matters referred will be found to
be of two kinds : first, those in which the jurisdiction exercised
is original; secondly, those in which the jurisdiction exercised
is of an appellate nature, although the decision in review is
not one of a strictly judicial character. It has been thought

(d) The words of sect. 4 of 3 & 4 Will. IV. c. 41 are " as His Majesty
shall think fit."

(e) D' Attain v. Le Breton (Jersey, 1857), 11 Moo. at pp. 70, 75 ; and
cf. In re the States of Jersey (1853), 9 Moo. at p. 186, where the question
being one as well of policy as law, and involving the constitutional
rights of the states and the inhabitants of the Island of Jersey, was
referred by Her Majesty to a mixed Committee of the Privy Council,
comprising members of the Government as well as of the Judicial
Committee, who were attended by the law officers of the Crovm, the
Attorney- General and the Solicitor-General, as Assessors to the
Committee.

SPECIAL REFERENCE.

sufficient to indicate the existence of the two kinds of
matters which may be referred, while, on the other hand, it
has been felt convenient to make no such arbitrary arrange-
ment in the cases referred to in this chapter. The Committee
are guided by the terms of the reference as to whether they
are called upon to advise the Crown judicially, or in its
executive and administrative character.

The report or recommendation of the Judicial Committee Not neces-
to the Sovereign in Council with reference to matters of court an°Pen
appeal from any court or judicial officer is in a distinct
category from the advice to be given in any such other matter
as he may think fit to refer to them. The manner in which the
advice is to be tendered is the same, that is to say, in the
same manner as has been heretofore the custom with respect
to matters referred by His Majesty to the whole of his Privy
Council or a Committee thereof ; but in the case of a judicial
matter the nature of the report or recommendation must
always be stated in open court. No such restriction appears
to be placed upon the advice which the Sovereign may think
fit to seek in other matters. It accordingly is not the
practice for the Judicial Committee to make a pronouncement
in the nature of a formal judgment showing the decision to
which they have come before making their report on special
reference to the Sovereign in Council.

But in a special case where the late Chief Justice of a
colony petitioned against his suspension from office by the
direction of the Governor acting on the report of the Executive
Council, the report of the Committee to which the petition
was referred was publicly stated. In the. Matter of the
Suspension of Mr. J. B. Walker, The Times, December
16, 1908.

Award of Non-Judicial Officer.— Where the Governor in Non-judicial
Council of Bombay was empowered by an Act of the legisla-
ture to administer the estate of the Nawab of Surat, and no
provision was made for any appeal from his decision, it was
held that the award was not such a judicial act as could be
questioned upon appeal, but could only be brought before the
Judicial Committee under sect. 4 of 3 & 4 Will. IV. c. 41 (/).

(/) In re Nawab of Surat (Bombay, 1854), 9 Moo. 88 ; and cf.
Maharajah Madhawe Singh v. Sec. of State for India, (1904) 31 I. A.
239.

P.C. 16

242

THE PRACTICE OF THE PRIVY COUNCIL.

The recall of
legislative
Orders in
Council.

No judgment
pronounced.

Report of
Committee
advising
revocation.

Petition
asking royal
confirmation
of Act to be
withheld.

And so where a British agent had jurisdiction in a native
state, which was political and not judicial in its character, it
was held that an appeal did not lie from appellate orders
therein passed by the Governor of Bombay in Council to
His Majesty in Council, but the matter, it was suggested,
might be brought before the Privy Council by special
reference after application to His Majesty. Hemchand
Devchand v. Azam Salwrlal ChotamM, (1906) A. C. 212, at
p. 221.

Upon the petition of a committee, appointed at a public
meeting of the inhabitants of Jersey, the Crown issued, with-
out communicating with the States of the island, certain
Orders in Council for the establishment of a sitting magis-
trate, a paid police, and a court of requests for the recovery
of small debts. The Royal Court, upon receiving these
orders for registration, suspended provisionally the registra-
tion of them, and referred them to the States, who petitioned
the Crown (g) to rescind them, as having been passed in
violation of the privileges of the States. The Orders in
Council were suspended for a time, and the States passed six
Acts as substitutes for the Orders, which Acts were trans-
mitted for Her Majesty's approbation. Petitions in favour
of the Orders and against the Acts were preferred by certain
merchants and other inhabitants of St. Heliers, in Jersey,
and were referred, along with the Orders and the Acts, to a
mixed Committee of the Privy Council. In accordance with
the practice above mentioned in cases heard upon special
reference no judgment was pronounced. Although the
Orders were well calculated in their main provisions to im-
prove the administration of justice, serious doubts existed
whether the establishment of such provisions by the Crown
without the assent of the States was consistent with the con-
stitutional rights of the island ; and the Acts, though liable
to objection, did to a considerable extent carry into effect
the provisions of the Orders (h). Accordingly by the report
Her Majesty was advised to revoke the Orders and to confirm
and ratify the Act.

Sometimes a petition that the royal sanction to an
Ordinance passed in one of the possessions of the Crown

(g) In the Matter of the States of Jersey (1853), 9 Moo. 185.
(h) Cf. The Jersey Prison Board Case (1894).

SPECIAL REFERENCE.

243

should be withheld is presented and referred to a Committee
of the Privy Council for advice. In such a case no judg-
ment is given. The Committee report whether in their
opinion it be advisable for His Majesty to approve of the
legislation.

It is generally the case that the instructions to the
Governor of a colony require him to reserve for the royal
assent enactments of an unusual nature touching the pre-
rogative of the Crown or the rights of His Majesty's subjects
not resident in the colony, and also as to currency, the army
and navy, differential duties, and the effect of foreign
treaties.

A petition presented by certain civil officers and in-
habitants, ratepayers, praying that Her Majesty would
withhold her sanction to an Act of the States of Jersey,
was beard by the Lords of the Committee for the affairs of
Jersey (/).

In another case from Jersey the advocates of the island
opposed the confirmation of an Act of the States of Jersey
throwing open the Bar of the Cour Royale. Cases were
lodged on behalf of the advocates and the States, and
both parties were represented by counsel (k).

Questions arising as to their relative rights and powers

between the legislative bodies of a colony are properly dealt

.,, , • i - ±1 v T • i rt •./

with by a special reference to the Judicial Committee. A

dispute of this kind arose between the Legislative Council
and the Legislative Assembly of Queensland in 1885.
Certain documents together with the following questions
were, on the petition of those bodies, submitted by the
Sovereign to the Judicial Committee, namely : (1) Whether
the Constitution Act of 1867 confers on the Legislative
Council powers co-ordinate with those of the Legislative
Assembly in the amendment of all Bills, including money
Bills ? (-2) Whether the claims of the Legislative Assembly
as set forth in their message are well founded ? The Judicial
Committee answered the first of the questions in the negative
and the second in the affirmative (/).

(») In re The States of Jersey, in the Matter of Gibaut (1858), 11 Moo.
320 ; In the Matter of the Jersey Jurats (Jersey, 1866), L. R. 1 P. C.

(k) The Jersey Bar (Jersey, 1859), 13 Moo. 263.

(/) Queensland Money Bills Case, P. C. Arch., April 3, 1886.

16—2

Petition to
withhold

n£j to an

Act.

Constitu-
tional ques-
t ions between
legislative
bodies.

244

THE PRACTICE OF THE PRIVY COUNCIL.

Petition for
cancel ment
of rules of
court.

Severance of
colony having
responsible
government.
Cape Breton
Case.

Intercolonial
differences.

One of the justices of Grenada petitioned that a rule
made by the Chief Justice prohibiting the assistant justices
from acting in chambers be declared invalid. The petition
was referred and a counter-statement put in by the Chief
Justice (m).

Certain inhabitants of the island of Cape Breton petitioned
the Crown, that the constitution which had been granted to
them by royal letters patent in 1784, should be restored and
that the annexation of the island to Nova Scotia, which took
place in 1820, might be annulled. The petition rested on
grounds partly of law and partly of policy and expediency.
It was referred to the Judicial Committee, with directions
that the petitioners should be confined in their argument to
the legal question raised by the petition, and should not be
permitted to enter into any questions of public convenience
or policy. Notice was also required to be given of the
petition having been so referred to the Legislative Council
and House of Assembly of Nova Scotia, who were authorised,
if they thought fit, to appoint counsel to appear on their
behalf and oppose the claim of the petitioners (n). The
petitioner being so directed put in a case with reasons. The
Crown also put in a case, and both the petitioner and the
Crown appeared by counsel.

Boundaries of Colonies. — Differences having arisen be-
tween two colonies as to a tract of land which was claimed
by each of them as part of the territory thereof, the
Governors of the colonies with the consent of their councils
respectively, agreed to submit their differences to the Queen
in Council ; they then joined in a commission to take
evidence, and when it had been duly executed and returned r
each Governor presented a petition (accompanied with a
record of the evidence), praying for Her Majesty's decision
which was accordingly given upon the report of the Judicial
Committee (case of Pental Island, 1872). In relation to a
question between the Provinces of Ontario and Manitoba
respecting the western boundary of Ontario, a special case
was in 1884 agreed upon and signed by the Attorney-
General of each province and submitted by petition to the

(m) In re Wells (Grenada, 1840), 3 Moo. 216.
(n) In re Island of Cape Breton (Nova Scotia, 1846), 5 Moo. 259 ;
6 State Tr. (N. S.) 283.

SPECIAL REFERENCE. 245

Sovereign with a prayer that Her Majesty in Council would
be pleased to take the special case into consideration, and
that the special case might be referred to the Judicial
Committee to report thereon.

The petition was admitted, and the Judicial Committee
reported on it. The pending dispute between the Govern-
ment of Newfoundland and the Dominion of Canada as to
the exact boundaries of Labrador is to be settled in the same
manner. The Privy Council, in 1878, likewise adjudicated
in virtue of this power on the joint request of the Govern-
ments of Ontario, and Manitoba on disputes as to the
division of assets and liabilities between the two provinces,
which had originally been united.

The Crown, however, will not refer matters to the Com-
mittee, unless they are such that the Committee has a proper
right to intervene and can effectually do so. Hence, in 1872,
the Crown refused to refer the question whether certain
enactments of the legislature of New Brunswick on the
subject of schools were such as to give the Dominion
Parliament powers to pass remedial legislation under
section 93 of the British North America Act, 1867, on the
ground that the Queen in Council having no power
to determine the matter, the decision given would not
be binding on the parties in Canada. Again, in 1879,
the Secretary of State for the Colonies declined to refer the
question of the right of the Dominion Government to dismiss
the Lieutenant-Governor of Quebec, because the Dominion
Government was not a party to the request for reference,
and could not have been bound by the decision. See Keith's
Ptespohsible Government in the Dominions, pp. 271-2.

Questions of enforcing obligations under treaties may be Interpreta-
referred to the Privy Council. Thus, after the conclusion
of the Peace of 1815, an appeal was given to the Privy
Council under the statute 59 Geo. III. c. 31 (1819) from
the awards of the Commissioners appointed under that
statute for liquidating the claims founded upon the Con-
vention between Great Britain and France with reference to
the Acts of the Revolutionary Government(o).

sect. 10 of that statute. For appeals thereunder, see 2
uapp, at pp. 7, 295, 336, 345, 350, 353, f"
Count de WaWs Case (1848), 6 Moo. 216.

246

THE PRACTICE OF THE PRIVY COUNCIL.

Petition by
foreigner
within the
dominions.

Review of
decision of
court with
special
jurisdiction.

Civil Status. — A native of France having been removed
from the Mauritius by the Governor of that colony, sub-
mitted his case to the Secretary of State for the Colonies, and
with the concurrence of the government, preferred his com-
plaint by petition to the King in Council. The petition was
referred by His Majesty to the Judicial Committee to advise :

1. What was the status of the petitioner ?

2. Whether the legal rights incident to such status had

been infringed by his removal from the colony ?

The decision of the Committee on the legal questions
referred was accompanied by an expression of their
opinion, that the case was one of great hardship, and of
their hope that this opinion, being represented in the
proper quarter, might be available towards the relief of the
party. The Judicial Committee there laid down that a
person's civil status must be decided by the laws of
England (p)9 but his rights and liabilities incident to such
status by the law of the colony (q).

By a Colonial Act, a special jurisdiction (relating to the
registration of apprenticed labourers) was given to a court
in the island of Grenada, without appeal. The Judicial
Committee, in 1838, held that it had no jurisdiction to
entertain an appeal; and that the only course was for the
petitioner to present a petition to the Crown through the
Secretary of State, and then it could be referred to the
Judicial Committee generally for their opinion (r). But
now by virtue of 7 & 8 Yict. c. 69, where the special juris-
diction is vested in a court of justice, His Majesty, with the
advice of the Privy Council, may admit an appeal without
the matter being specially referred -under 3 & 4 Will. IV.
c. 41, s. 4. But in Theberge v. Laudry (s) (Quebec), it was
held no appeal lay from the Canadian Court for hearing

(p) Following Donegani v. Donegani (Low. Can. 1835), 3 Knapp, 63,
where it was decided that the prerogative of the Crown with regard to
aliens must be determined by the laws of the particular colonies in
which the questions arise, and not by the law of England, which is only
to be looked at in order to determine who are, and who are not, aliens.

(q) In re Adam (Mauritius, 1837), 1 Moo. 460.

(r) In re Stronach (Grenada, 1838), 2 Moo. at p. 316. Cf. Att.-Gen.
of Nova Scotia v. Gregory (S. C. Can. 1886), 11 A. C. 231, where the
petitioner had come in and consented with the sanction of the court to
be bound by its order, which was to be considered a final disposition
of all contentions whether now in litigation or not.

(s) (1876) 2 A. C. 102.

SPECIAL REFERENCE. 247

election petitions to Her Majesty, as such court exercises a
peculiar jurisdiction which had hitherto existed in the
legislative assembly, depending on rights and privileges in
complete independence of the Crown.

A dispute between two prelates, where there has been no Ecclesiastical
regular judicial proceeding, will form the proper subject for disPute'
special reference (/).

A petition for leave to appeal from the sentence of a Appeal from
court-martial must be the subject of a special reference. See court-martial.
supra, p. 225.

Upon a special reference from the Crown, a Committee of interference
the Privy Council (before the organisation of the present
Judicial Committee) heard the petition of the sole surviving
judge of the Supreme Court of Bombay, complaining that
the government had interfered with the court in the
execution of its duties (u).

For the proper course to be pursued where it appears to Conduct of
the court that the conduct of one of its officers requires officers of
explanation, see the observations of the Judicial Com-
mittee at the end of the judgment in Emerson v. Judges of
Newfoundland, 8 Moo. 163.

Admission to Practise as Advocate. — A person conceiving Admission of
himself entitled to be admitted as an advocate at the Bar of advocates,
the Royal Court of Jersey, petitioned the Queen in Council
(stating the facts of the case) that an order should be
directed to the bailiff of the island to admit the petitioner to
take the oaths of an advocate and to practise in the court.
The petition was referred to the Judicial Committee. The
petition having been served on the bailiff, he put in an
answer ; the petitioner put in a case, and both parties were
heard by counsel. The Judicial Committee refused to
comply with the prayer of the petition ; but, as the Com-
mittee thought the petitioner was justified in obtaining the
opinion of their Lordships, gave no costs (x).

There is no appeal from the imposition of a fine for Fine for
contempt by a Court of Record acting within its discretion, contempt.

(0 Cf. Ward v. Bishop of Mauritius, 99 L. T. 854 ; 23 T. L. R. 52.
Cf., too, Re Bishop of Natal (1864), 3 Moo. (N. S.) 116 ; and Bowerbank
v. Lord Bishop of Jamaica (1839), 2 Moo. 449.

(u) In re Supreme Court of Bombay (Bombay, 1829), 1 Knapp. 1.

(x) D' Attain v. Le Breton (Jersey, 1857), 11 Moo. 64 ; cf. Gallais v.
De Veutte (1833), ibid. 72.

248

THE PRACTICE OF THE PRIVY COUNCIL

Questions of
precedence of
colonial
judges.

Disregard of
prerogative
writs by the
court in
Jersey.

the Judicial Committee can therefore make no order on
appeal in respect thereof (y). The right course is to
petition the Crown for a special reference (z). Where the
legal practitioner was wrongly suspended, but had been
guilty of disrespect to the court below, the Judicial Com-
mittee directed that he should apply to the court below to
discharge the orders, " and in case he should make such
application, they thought that the orders should be rescinded
and discharged, unless some sufficient reason to the contrary
(other than the reasons referred to in the orders) should be
alleged and established against the appellant " (a).

Where a judge was refused by other judges the precedence
to which the letters patent sanctioned by warrant under
Royal Sign Manual and Seal entitled him, a petition was
referred to the Judicial Committee to determine the question.
As the question involved the prerogative of Her Majesty's
Crown, the Crown appeared by the Attorney-General. The
judges set forth their reasons for their determination in
statements, but did not appear by counsel (b).

The Royal Court of Jersey having refused to register a
writ of habeas corpus granted by the Vice-Chancellor of
England, and two warrants issued by the Lord Chancellor
for the arrest of persons who had committed a contempt of
the Court of Chancery, the person aggrieved by this refusal
petitioned Her Majesty in Council (c), praying her to declare
and order that the writ of habeas corpus did of right run
into and ought to be obeyed within the island, and also to
orderjand direct the Royal Court to register and publish
the warrants, and to give directions to the Governor and
others to be aiding and assisting in the execution thereof (d).

(y) Smith v. Justices of Sierra Leone (1841), 3 Moo. 365, 367 ;
Rainy v. Justices of Sierra Leone (1853), 8 Moo. at p. 55.

(z) Ee Ramsay (L. Can. 1872), 7 Moo. (N. S.) at p. 272 ; cf. Re
Pollard (Hong Kong, 1868), 5 Moo. (N. S.) 111.

(a) Smith v. Justices of Sierra Leone (1848), 7 Moo. at p. 186.

(&) In re Justice Bedard (Canada, 1849), 7 Moo. 23, 29.

(d) The prerogative writ of habeas corpus ran at common law to all
dominions of the Crown. The King v. Gowle (1759), 2 Burr. 856, per
Lord Mansfield ; and Ex parte Anderson (1861), 3 Ell. & EU. 487, in
which a writ was issued by the Queen's Bench at Westminster to the
Sheriff of the County of York, Upper Canada. In consequence of this
decision the 25 & 26 Viet. c. 20 (Imp.), was enacted, as the prerogative
right could not be taken away, except by express enactment. By
sect. 1 of this Act no writ of habeas corpus shall issue out of England

SPECIAL REFERENCE. 249

Xo judgment was delivered, but the Queen, on an
elaborate report of the Lords of the Committee, ordered :
" That the Royal Court of Jersey do forthwith register and
publish the warrants signed and issued by the Right
Honourable the Lord High Chancellor of Great Britain ;
and Her Majesty was further pleased to order and direct
the Lieutenant-Governor of the Island of Jersey, the
yiscount, denunciators, officers of justices, constables, and
centeniers, and all other Her Majesty's subjects within the
said Island to be aiding and assisting in the due execution
of the said warrants."

Special References connected with Public, Institutions.

By stat. 17 & 18 Viet. c. 81, for the government of the Universities
University of Oxford, and stat. 19 & 20 Yict. c. 88, for the
University of Cambridge, certain powers of internal legis-
lation were entrusted to the local authorities, subject to the
approval of the University Commissioners, or to the Com-
missioners alone ; and, after the expiration of the Commission,
to the academical councils named in the Acts.

Oxford. — By 25 & 26 Yict. c. 26, s. 1, further power is
conferred of making statutes. By sect. 8 such statutes are
liable to alteration or repeal, subject to the approval of His
Majesty in Council. By sect. 9, statutes made under 1 7 & 18
Viet. c. 81, are subject to alteration and repeal, with the
approval of His Majesty in Council. By 25 & 26 Viet,
c. 20, s. 7, the Committee of Council by which His Majesty
is to be advised must contain five members, two of whom,
not including the Lord President, must be members of the
Judicial Committee.

Cambridge. — By sect. 43 of the Cambridge University
Act, 19 & 20 Viet. c. 88, the statutes under that Act are
subject to repeal or amendment, with the approval of His
Majesty in Council. By the 40 & 41 Viet. c. 48 (1877), Universities
s. 44, a Committee of His Majesty's Privy Council, styled Committee.
the Universities Committee of the Privy Council, is created,

into any colony or foreign dominion of the Crown where His Majesty
has a lawfully established court of justice having authority to grant
and issue the said writ and to ensure the due execution thereof
throughout such colony or dominion. Sect. 2 provides that the Act
shall not affect or interfere with any legally existing right of appeal to
His Majesty in Council Cf. Re Sekg&me, (1910) 2 K. B. 576.

250

THE PRACTICE OF THE PRIVY COUNCIL.

Scottish

Universities

Committee.

Irish

Universities

Committee.

and shall consist of the President of the Privy Council, the
Archbishop of Canterbury, the Lord Chancellor, the
Chancellors of the Universities of Oxford and Cambridge if
members of the Privy Council, and such other member or
two members of the Privy Council as His Majesty shall
think fit to appoint, that other member or one at least of
those two other members being a member of the Judicial
Committee. The powers of the .Committee are to be exercised
by any three or more members, one being the Lord Chancellor
or a member of the Judicial Committee.

Durham.— By the Durham University Act, 1861 (24 &25
Viet. c. 82), ordinances may be referred by Order in Council
to the five members of the Privy Council, of whom two, not
including the Lord President, shall be members of the
Judicial Committee (sect. 8).

By the Universities (Scotland) Act, 1889 (52 & 53 Viet.
c. 55), s. 9, a Scottish Universities Committee of the Privy
Council is created, consisting of the Lord President of the
Privy Council, the Secretary for Scotland, the Lord Justice
General if a member of the Privy Council, the Lord Justice
Clerk if a member of the Privy Council, the Lord Advocate
if a member of the Privy Council, the Chancellor and the
Lord Rector of each of the Universities if a member of the
Privy Council, one member at least of the Judicial Com-
mittee, and such other members of the Judicial Committee
as His Majesty may from time to time appoint. The powers
of the Committee may be exercised by three or more of the
Committee. (As to references under the Act, see sects. 20
and 21.)

By the Irish Universities Act, 1908 (8 Edw. VII. c. 38),
s. 18, there is established a Committee of the Privy Council
in Ireland, styled the Irish Universities Committee, which
shall consist of not less than five members of the Privy
Council in Ireland appointed by the Lord Lieutenant, of
whom two at least shall be or shall have been judges of the
Supreme Court. The powers and duties of the Committee
may be exercised by a tribunal of not less than three
members, so long as one is a judge, but in the case of an
appeal from a decision of the Commissioners or a scheme,
at least two members of the court must be persons who
are or have been judges. The costs of all parties of and

SPECIAL REFERENCE. 251

incident to the hearing are in the discretion of the Com-
mittee, and the Lord Lieutenant in Council may make rules
generally for regulating the procedure.

By sect. 17 the Lord Lieutenant in Council shall refer
to the Committee any appeal presented to him (a) against
any scheme of the Commissioners relating to the transfer of
property, or any provision thereof, by the governing body of
either of the new universities or of the new college having its
seat at Dublin, or by any person directly affected by the
scheme ; and (b) against any scheme in relation to existing
officers, and any determination of the Commissioners with
respect to the payment of compensation by the governing
body of either of the new universities, viz., Queen's College,
Cork, or Queen's College, Gal way, or by any existing officer.
A petition was presented under the Act in 1909, praying
that the statutes of the Queen's University, Belfast, as far
as they provided that scholastic philosophy should be one
of the subjects of the Faculty of Arts, should be disallowed.
The Committee dismissed the petition without costs. Ex,
parte Mcxdermott, The Times, October 15, 1909.

Under stat. 3 & 4 Viet. c. 113, s. 83, and 31 & 32 Viet. Schemes of
c. 114, s. 3, schemes of the Ecclesiastical Commissioners
respecting capitular estates are to be laid before the King sioners.
in Council along with the objections. On the hearing of
such objections, the Committee will hear two counsel on
each side(e).

Under the Endowed Schools Act, 1869 (32 & 33 Yict. Endowed
c. 56), s. 39, if the governing body of any endowment to
which a scheme of the Commissioners appointed under that
Act relates, or any person or body corporate directly affected
by such scheme, feels aggrieved by the scheme, on any of
the grounds mentioned in the Act, such governing body, etc.,
may, within two months after the publication of the scheme,
when approved, petition His Majesty in Council to withhold

(e) Durham Capitular Estates Scheme, November 13, 1872. The
Lord Chancellor being ex ojficio a member of the Ecclesiastical Com-
mission, but not having taken any active part with reference to the
Durham Scheme, was held by the Committee not to be disqualified
from sitting on the hearing of the objections to the scheme. The
Durham Scheme was expressly referred by Her Majesty to the
Judicial Committee, and so was the Merton College Scheme.

(/) For locus standi,see Re Colchester School, (1898) A. C. 477.
The powers of the Commissioners are now exercised by the Board of
Education. (See 2 Edw. VII. c. 42, s. 13.)

252

THE PRACTICE OF THE PRIVY COUNCIL.

Municipal
corporatioDS.

Amotion
from office
held during
pleasure.

his approval. The petition is referred to the Judicial Com-
mittee, and is heard and dealt with in like manner as an
appeal from a court from which an appeal lies to His Majesty.
The Judicial Committee shall hear and deal with such peti-
tions in like manner as such appeals, and shall have the
same power with respect to the costs of the parties to the
petition and otherwise as they have with respect to any such
appeal. The report or recommendation to His Majesty is to
be made in like manner as in such appeal. The nature of it
is to be stated in open court. Endowed Schools Act (1869)
Amendment Act, 1873 (36 & 37 Viet. c. 87), s. 14) (g).

Petitions to the Crown, asking for the grant of a charter
of incorporation under the Municipal Incorporations Act are
referred under statute to a Committee of the Privy Council,
called the Committee of Council (h).

Complaints tvith Reference to Judges.

An office held during the pleasure of the Crown is not
comprised within the terms of stat. 22 Geo. III. c. 75 (i),
which applies only to offices held by patent and to offices
held for life, or for a certain term. Consequently, amotion
from an office held during pleasure is not an appealable
grievance under that statute (&), and the Judicial Committee
can therefore not grant special leave to appeal, since there is
no appeal as of right, nor is the appeal one from the decision
of a court or of a judicial officer acting in that capacity (I).

(g) Cf. Funds of Dulwich College (1876), 1 A. C. 68 ; Re Hodgson's
School (1878), 3 A. C. 857 ; Shaf toe's Charity (Haydon Bridge], ibid.,
872 ; Re Sutton Coldfield Grammar School (1881), 7 A. C. 91 ; Ross v.
Charity Commrs. (1882), ibid., 463 ; and Hemsworth ScJiool (1887), 12
A. C. 444.

(h) 45 & 46 Viet. c. 50, ss. 211—218 ; 46 & 47 Viet. c. 18, ss. 5 and 6.

(i) For an appeal in which the right of appeal was exercised under
this statute and the case was referred under 3 & 4 Will. IV. c. 41, and
no judgment in the appeal was delivered, see Willis v. Gipps, 5 Moo.
379.

(k) Ex parte Robertson (N. S. W. 1857), 11 Moo. 288. The Crown
has power to dismiss at pleasure either its civil or military officers,
except where it is otherwise expressly provided. This principle of
English law holds good whether it be in England or in the colonies,
since it is an implied term of the contract of service. Gould v. Stuart
(N. S. W.), (1896) A. C. 575. Cf. Shenton v. Smith, (1895) A. C. 229.

(1) Cf . the refusal of the Judicial Committee to grant leave to appeal
where the applicant had been dismissed from the office of Moonsirf in
Bengal, an office held during pleasure. In re Sree Mohun Ghutuck
(Calc. 1870), 13 Moo. I. A. 343.

COMPLAINTS WITH RESPECT TO JUDGES. 253

But if the appellant has not been properly heard before his
dismissal, the Committee may allow an appeal by its inherent
powers. Cf. Case of Mr. J. B. Walker, The Times, Novem-
ber 6, 1908. A petition for special reference is sometimes
addressed to the Sovereign in Council and presented through
the Secretary of State. This petition may then be referred
to the Judicial Committee under sect. 4 of the 3 & 4 Will. IV.
c. 41. Unless so referred the Judicial Committee do not
enter into the consideration of such acts as are done by the
Governor and council of a dependency in the exercise of
the power and authority committed to them. Accordingly,
where the matter came before the Judicial Committee sitting
judicially by the terms of the reference, they held that
although the conduct of the judge was erroneous and
improper they could not advise the Crown to remove him
for misconduct. In that case the judge had fined magistrates
for writing depositions in the third instead of the first person.
Repres. of Grenada v. Sanderson, 6 Moo. 38.

There is no right of appeal under 22 Geo. III. c. 75, where Where sus-

there has not been a positive amotion from office, but only an pepsio.n from

, . . a . office instead

order of suspension. A petition complaining of an order of Of amotion.

suspension is sometimes dealt with by the Secretary of State,
who advises the Crown to confirm or allow it ; but the matter
is commonly, on the recommendation of the Secretary of State,
referred by the Sovereign, under the 3 & 4 Will. IV. c. 41,
s. 4, to the Judicial Committee or to a Committee of Council
generally in accordance with the practice existing before the
passing of the Judicial Committee Act of 1833. There is Constitution
nothing in the fourth section of the Act which limits or inter-
feres with the right of the Crown to refer " other matters " to cases.
a Committee of the Council constituted as theretofore instead
of to the Judicial Committee. It is open to the Sovereign,
however, to summon any other members of the Privy Council
to attend the meetings of the Judicial Committee. The Lord
President and the Secretary of State for the Colonies some-
times sit where a matter concerns the colonies, and the
Secretary of State for Home Affairs when the Channel Islands
are affected, as in appeals with reference to amotion from
office, if the reference be to the Judicial Committee.

The Lord President recently sat on the Committee which
was constituted " In the matter of the suspension of Mr. J. B.

254 THE PRACTICE OF THE PRIVY COUNCIL.

Walker from his office of Chief Justice of Grenada." On the
advice of the Secretary for the Colonies an inquiry had been
held by the executive council of the colony into the conduct
of the petitioner, and by the direction of the Governor he
was suspended from his office. He submitted a petition to
His Majesty against the action of the Governor, and the
petition was referred to the Judicial Committee. The Times,
November 6 and December 18, 1908.

Practice as to In cases of special reference, where there are not two

lodgingcases partjes litigating on ordinary terms, the practice has not

references. been uniform. The recent tendency has been to require both

parties to be represented by counsel and printed cases to be

lodged (m).

Amotion of A judge in a colony who has been removed from his office

judge holding may appeal as of right by virtue of 22 Geo. III. c. 75, s. 2,

lce' against the order of removal as in other cases of appeal from

such colony. Notice must be given to the authority whose

order is appealed against, or at least to the Governor, who

ought to appear and to put in a case and be heard by the

counsel (ri).

The amotion It was intimated by the Judicial Committee in the case
of judges. of Gioete v The Qmm ^ wliere tne Recorder of Natal had

th^ Crow? ^een SU8Pended by the Lieutenant-Governor under a local
ordinance, that when the Crown appears as respondent it
ought not to support the suspension in its case as a matter
of course. Even when the Judicial Committee consider that
the appellant judge should be indemnified for the expenses to
which he has unjustly been put by reason of having to appeal
against the order of suspension, it would seem that no order
can be made against the Crown, since in the above case the
Committee expressed the view that the appellant should be
indemnified, but no order was in fact made (p).

Special leave In Morgan v. Leach (Bombay, 1841) (q), the Judicial

granted where Committee were of opinion that where a matter (not an
special refer-
ence as to acts ^ Cf petition of Mr< justice Grant of Bombay (1829), 1 Knapp,
ict .strictly 1 ; Justices of Common Pleas of Antigua (1830), ibid., 267. Cf. the
judicial. Order for special leave in De Souza's Case, December 17, 1888.

(TI) Willis v. Gipps (N. S. W. 1846), 5 Moo. 379 ; Montagu v.
Lieutenant-Governor of Van DiemarCs Land (1849), 6 Moo. 489.
(o) (1854), 8 Moo. 484.
(p) Ibid.

(q) 3 Moo. at p. 374 ; and cf. In re Minchin (Madras, 1847), 6
Moo. 43.

COMPLAINTS WITH RESPECT TO JUDGES. 255

appealable grievance, the decision not being in the nature of
a judgment or determination) was specially referred, their
lordships, under the general powers of 3 & 4 Will. IV. c. 41,
could advise Her Majesty to grant leave to appeal. The appeal
was concerned with the admission of parties to practise as
attornies in the Supreme Court of Bombay. This proceed-
ing would seem to apply to matters which are not strictly
judicial acts.

Where special leave to appeal is sought by practitioners Practice on

who have been struck off the rolls, or suspended from practice aPPeals in
,,,,.., the nature of

by the order of a j udge, or been convicted of contempt of court, complaints

it is the practice (following the analogous practice in a against
doleance from the Channel Islands, p. 95, supra, which is in 3U
the nature of a complaint against the judge) for the Judicial
Committee, when granting leave, to recommend that the
petition be referred to the judge in order that he may make
such observations on the petition and the allegations therein
contained as he may think fit ; and the judge is directed to Petition per
return such observations to the Eegistrar of the Privy Council we'

with all convenient speed in order that the same may be
laid before the lords of the Committee. It is further directed
that the judge be at liberty (if he shall think fit) to appear
by counsel at the bar to show cause against the prayer of
the petitioner (r). The Judicial Committee have no power
under the general jurisdiction to issue an order in the nature
of a mandamus requiring judges below to do their duty.
Should judges, however, refuse to do what they ought to do,
and refuse to proceed as they ought to proceed, a representa-
tion may be made in the proper quarter of their misconduct
or a peremptory order may be issued (s).

Notice of leave, given ex parte, to appeal from an order xotice to
of judges suspending an advocate from practising should be judges.

(r) Cf. the Order in Council dated August 12, 1885 (12 App. Cas.
459), in Re Dillett (British Honduras), and In re SoiUhekul Krishna
Row, Order in Council dated November 26, 1886 (Coorg.) P. C. Arch.
In each of these cases the judge made his observations in writing, but
did not appear by counsel See also Re Louis de Souza (British
Guiana) ; McLeod v. St. Aubyn (St. Vincent), (1899) A. C. 549. In
the last-named case the judge put in a case and appeared by counsel
See, further, Ex parte Renner (Gold Coast), (1897) A. C. 219 ; and Re
M. A. Taylor, 105 L. T. 579.

(s) In re Muir (Tobago, 1839), 3 Moo. 150 ; In re Assignees of
Manning (Antigua, 1840), ibid, at 165.

256

THE PRACTICE OF THE PRIVY COUNCIL.

Notice of the
charge on
amotion of
judges.

Evidence.

Petition for
removal of
judge.

Order for
removal.

given to the judges (/). It is not sufficient that the judges
have been required to forward the original record containing
the order of suspension and the evidence (u). Security for
costs is required (x).

In the case either of amotion with the right of appeal, or
of temporary suspension with a reference to England, the
Governor who feels himself called upon to take so decided
a step is bound to give the accused person full notice
of all the charges against him, and to call upon him for
his answer and hear it (y) ; and also for his own justification
to send home the minutes of Council, the written statements,
and all material documents relating to the case in a clear
and intelligible shape.

Evidence upon affidavit is permitted to be filed in the Privy
Council in such matters (z).

There are cases, however, in which the Legislative Assembly
of a colony may think fit to petition the Sovereign in Council
for the removal of a judge. There is no regular system of
pleadings and procedure in such cases (a). The proceedings
being quasi-criminal, the acts complained of must be speci-
ficially stated and clearly expressed, and the accused person
should have full notice of all that is to be proved against
him. When the issues are settled both sides produce
affidavits and other written testimony.

Where the Committee recommends the removal of a judge
from his office the Order made by His Majesty in Council
commands the Secretary of State for the Colonies to direct
the Governor of the colony to revoke the letters patent under
which the judge holds office. Beaumont's Case, 1866.

(t) Smith v. Justices of Sierra Leone (1848), 7 Moo. 175 ; In re
Downie and Arrindell (British Guiana, 1841), 3 Moo. 414 ; Emerson v.
Judges of Newfoundland (1854), 8 Moo. 163.

(u) Ibid. ; and see In re Mpnckton (P. E. I. 1837), 1 Moo. 455.

(x) Smith v. Justices of Sierra Leone, 1 Moo. 175 ; Emerson v.
Judges of Newfoundland (1854), 8 Moo. 163.

(y) Where the Judicial Committee were of opinion that the judge
had not had due opportunity of being heard, they advised that the
order of amotion should be reversed notwithstanding that they held
there were sufficient grounds for the order. Willis v. Gipps (1846,
N. S. W.), 5 Moo. 379.

(z) Cf. Smith v. Justices of Sierra Leone (1841), 3 Moo. 365.

(a) See the Memorandum as to the Removal of Colonial Judges,
Appendix to 6 Moo. (N. S.) p. xii. as to the unsatisfactory character of
such proceedings before the Judicial Committee as a court of first
instance.

CHAPTER VIII.

GENERAL PRACTICE AS TO PETITIONS.

THE rules given hereunder, which are comprised in the
Consolidated Rules of the Judicial Committee, issued in
1908, are to be followed in every case where a petition in
any appeal pending before the Judicial Committee is
presented.

Form and Procedure of Petitions.

The general rules as to petitions before the Privy Council
apply both to petitions for leave to appeal and to any inter-
locutory petitions concerned with the appeal.

45. All petitions for orders or directions as to Mode of
matters of practice or procedure arising after the
lodging of the petition of appeal and not involving

any change in the parties to an appeal shall be
addressed to the Judicial Committee. All other
petitions shall be addressed to His Majesty in Council,
but a petition which is properly addressed to His
Majesty in Council may include, as incidental to the
relief thereby sought, a prayer for orders or directions
as to matters of practice or procedure.

Thus a petition for leave to appeal must be addressed to
Tajesty in Council, while a petition for leave to amend
the record of appeal after the petition of appeal has been
lodged would be addressed to the Judicial Committee.
Petitions addressed to His Majesty require to be disposed of
by Order in Council, a more costly and less speedy process.

46. Where an order made by the Judicial Committee Orders on
does not embody any special terms or include any
special directions, it shall not be necessary to draw not

p.c. 17 drawn up>

258

THE PRACTICE OF THE PEIVY COUNCIL.

Form of
petition.

Service of
petition.

Verifying
petition by
affidavit.

up such order, unless the Committee otherwise direct,
but a note thereof shall be made by the Kegistrar of
the Privy Council.

47. All petitions shall consist of paragraphs numbered
consecutively and shall be written, type-written, or
lithographed, on brief paper with quarter margin and
endorsed with the name of the court appealed from,
the short title and Privy Council number of the appeal
to which the petition relates or the short title of the
petition (as the case may be), and the name and
address of the London agent (if any) of the petitioner,
but need not be signed. Petitions for special leave
to appeal may be printed and shall, in that case, be
printed in the form known as demy quarto or other
convenient form.

49. Where a petition is lodged in the matter of any
pending appeal of which the record has been regis-
tered in the Registry of the Privy Council, the peti-
tioner shall serve any party who has entered an
appearance in the appeal with a copy of such petition,
and the party so served shall thereupon be entitled
to require the petitioner to furnish him, at his own
expense, with copies of ,any papers lodged by the
petitioner in support of his petition.

This rule applies to petitions in any appeal of which the
record has arrived and been registered in England. It
covers petitions for withdrawal of the appeal, for revivor,
and for dismissal for non-prosecution. (See later, p. 293 ff.)

GENERAL PRACTICE AS TO PETITIONS. 259

shall be sworn by the petitioner himself and shall
state that, to the best of the deponent's knowledge,
information, and belief, the allegations contained in
the petition are true. Where the petitioner is repre-
sented by an agent, the said affidavit shall be sworn
by such agent and shall, besides stating that, to the
best of the deponent's knowledge, information, and
belief, the allegations contained in the petition are true,
show how the deponent obtained his instructions and
the information enabling him to present the petition.

Thus, a petition for leave to appeal, or a counter-petition
against the grant by leave to appeal, must be supported
by affidavit ; but a petition for revivor if accompanied
by a certificate from a court appealed from in accordance
with rule 51 (see p. 309), does not require an affidavit.

85. Affidavits relating to any appeal, petition, or Affidavits
other matter pending before His Majesty in Council

or the Judicial Committee may be sworn before the registrar of

Registrar of the Privy Council. Council7

52. The Registrar of the Privy Council may refuse Petition
to receive a petition on the ground that it contains

scandalous matter, but the petitioner may appeal, by matter to be
way of motion, from such refusal to the Judicial
Committee.

This rule corresponds with the general jurisdiction of
the High Court to expunge scandalous matter in any record
or proceeding. (Cf. Re Miller, 54 L. J. Ch. 205, and cf. the
Annual Practice, Order 19, r. 27).

53. As soon as a petition is ready for hearing, the Setting down
petitioner shall forthwith notify the Registrar of the l)etition-
Privy Council to that effect, and the petition shall
thereupon be deemed to be set down.

54. On each day appointed by the Judicial Com- Times within
mittee for the hearing of petitions the Registrar of the J^h ^
Privy Council shall, unless the Committee otherwise tions shall
direct, put in the paper for hearing all such petitions l

17—2

260

THE PRACTICE OF THE PRIVY COUNCIL.

Notice to
parties of
day fixed for
hearing
petition.

Consent
petition.

Withdrawal
of petition.

as have been set down. Provided that, in the absence
of special circumstances of urgency to be shown to
the satisfaction of the said registrar, no petition, if
unopposed, shall be so put in the paper before the
expiration of three clear days from the lodging thereof,
or, if opposed, before the expiration of ten clear days
from the lodging thereof unless, in the latter case, the
opponent consents to the petition being put in the
paper on an earlier day not being less than three clear
days from the lodging thereof.

55. Subject to the provisions of the next following
rule, the Eegistrar of the Privy Council shall, as soon
as the Judicial Committee have appointed a day for
the hearing of a petition, notify all parties concerned
by summons of the day so appointed.

56. When the prayer of a petition is consented to
in writing by the opposite party, or when a petition is
of a formal and non-contentious character, the Judicial
Committee may, if they think fit, make their report
to His Majesty on such petition, or make their order
thereon, as the case may be without requiring the
attendance of the parties in the council chamber, and
the Eegistrar of the Privy Council shall not in any
such case issue the summons provided for by the last
preceding rule, but shall with all convenient speed
after the Committee have made their report or order,
notify the parties that the report or order has been made
and of the nature and date of such report or order,

57. A petitioner who desires to withdraw his
petition shall give notice in writing to that effect to
the Eegistrar of the Privy Council. Where the petition
is opposed, the opponent shall, subject to any agree-
ment between the parties to the contrary, be entitled
to apply to the Judicial Committee for his costs, but
where the petition is unopposed, or where, in the case
of an opposed petition, the parties have come to an
agreement as to the costs of the petition, the petition

GENERAL PRACTICE AS TO PETITIONS. 261

may, if the Judicial Committee think fit, be disposed
of in the same way mutatis mutandis as a consent
petition under the provisions of the last-preceding rule.

58. Where a petitioner unduly delays bringing a
petition to a hearing, the Registrar of the Privy Council
shall call upon him to explain the delay, and, if no
explanation is offered, or if the explanation offered is>

in the opinion of the said registrar, insufficient, the Procedure
said registrar may treat the said petition as set down ^fet
and may, after duly notifying all parties interested by unduly
summons of his intention to do so, put the petition in
the paper for hearing on the next following day
appointed by the Judicial Committee for the hearing
of petitions for such directions as the committee may
think fit to give thereon.

59. At the hearing of a petition not more than one only one
counsel shall be admitted to be heard on a side. heardon a

48. Where a petition is expected to be lodged, or sideinpeti
has been lodged, which does not relate to any pending
appeal of which the record has been registered in the
Registry of the Privy Council, any person claiming
a right to appear before the Judicial Committee on
the hearing of such petition may lodge a caveat in the
matter thereof, and shall thereupon be entitled to
receive from the Registrar of the Privy Council notice
of the lodging of the petition, if at the time of the
lodging of the caveat such petition has not yet been
lodged, and, if and when the petition has been lodged,
to require the petitioner to serve him with a copy of
the petition, and to furnish him, at his own expense,
with copies of any papers lodged by the petitioner in
support of his petition. The caveator shall forthwith
after lodging his caveat give notice thereof to the
petitioner, if the petition has been lodged.

This provision relates to a petition for leave to appeal or
any interlocutory petition lodged or expected to be lodged
before the record is registered.

CHAPTER IX.

PBACTICE ON APPEALS IN ENGLAND — STEPS BEFORE THE
HEARING — TRANSMISSION OF TRANSCRIPT — PRINTING
THE RECORD — APPEARANCE — LODGING PETITION OF
APPEAL — CASE.

IT has been pointed out that the new rules for appeal
issued since the Imperial Conference of 1907 are based on
the assumption that the court appealed from is best qualified
to deal with any questions that may arise in connection with
the appeal up to the despatch of the record to England. Upon
delivery of the judgment in the court from which the
appeal lies to the Sovereign in Council, the practitioner
should therefore at once consult the provisions (Part I.,
supra) by which the right of appeal is governed.

Asserting the Assertion of Appeal. — The intention of appealing must
appeal below. genera]iv be asserted by way of motion or petition for leave
to appeal presented to the court which has delivered the judg-
ment which is to be questioned (a). The usual practice in
the colonial courts, frequently regulated by rules made by
the judges of the Supreme Court of the colony, is that the
petition or motion should be lodged in court and notice
given by the appellant to his opponent, before the application
for leave is made upon the petition or notice of motion, and
within the period laid down by the rules of appeal applicable
to the particular possession or foreign jurisdiction.

The conditions imposed by the Order in Council or other
v instrument by which the court is authorised to permit an
appeal to be brought must be strictly observed. The court
from which the appeal lies has regularly a discretion as to
the issue of execution pending the appeal and as to what, if
any, security shall be taken from the respondent in respect

(a) See, further, Ecclesiastical and Admiralty appeals, which are
noticed separately, Part III., infra.

PRACTICE ON APPEALS IN ENGLAND. 263

of the execution. Such security is intended for an
indemnity to the appellant against any loss he might suffer
by reason of the execution pending the appeal. Security
may also be taken from the respondent for due performance
of any Order that may be made by the Sovereign in
Council.

It is always desirable for the appellant to file his applica-
tion for leave to appeal without delay, otherwise, if execution
is issued and possession obtained by the decree-holder, it
will not be set aside, and the appellant will have to take the
consequences.

The appellant must see that he duly complies with the
conditions imposed within the periods limited. When leave
to appeal is given, the appellant must see to the preparation
of the transcript or copy record which has to be transmitted
to the Registrar of the Privy Council. He must ascertain
and deposit with the court the costs required for making the
copies and translations, and, where necessary, for printing
the record abroad.

The practice as regards the application for leave to appeal Rules of
and the preparation of the record in the colony has already
been explained. (See Chapters II. and VI.) We are now
concerned with the steps which have to be taken for the
prosecution of the appeal in this country. The Rules of
the Judicial Committee have been consolidated and amended
by an Order in Council of December 21, 1908, which came
into operation at the beginning of 1909. By this Order
the Orders in Council of 1842, 1853, 1888, 1891, 1893
and 1905 which had hitherto regulated the conduct of
appeals in England were revoked ; and it was provided
that "subject to the provisions of any statute or of any
statutory rule or order to the contrary, the new rules
should apply to all matters falling within the appellate
jurisdiction of His Majesty in Council " (rule 87). The
Judicial Committee, however, have powers to excuse from
compliance with the rules in a proper case, where good
cause is shown.

Among the miscellaneous provisions it is stated by rule 83 :

83. The Judicial Committee may, for sufficient Power of

... .. .,. Judicial

cause shown, excuse the parties from compliance with Committee

264

THE PRACTICE OF THE PRIVY COUNCIL.

to excuse
from com-
pliance with
rules.

Arrival of
transcript.

Agent to
subscribe
declaration.

any of the requirements of these rules, and may give
such directions in matters of practice and procedure
as they shall consider j ust and expedient. Applications
to be excused from compliance with the requirements
of any of these rules shall be addressed in the first
instance to the Eegistrar of the Privy Council, who
shall take the instructions of the Committee thereon
and communicate the same to the parties. If, in the
opinion of the said registrar, it is desirable that the
application should be dealt with by the Committee in
open court, he may, and if he receives a written
request in that behalf from any of the parties, he
shall, put the application in the paper for hearing
before the Committee at such time as the Committee
may appoint, and shall give all parties interested
notice of the time so appointed.

The appellant should take care to be informed as to the
date of the arrival of the transcript at the Council Office at
Whitehall ; this his agent must ascertain by examination of
the register at the Privy Council Office. It is no part of the
duty of the Registrar of the Privy Council to inform agents.
Therefore where agents were instructed to appear for a
respondent C., not knowing that there were other respon-
dents, and requested the registrar to inform them of the
arrival of transcript in A. v. (7., and the registrar did not
inform them owing to the appeal being entitled A. v.
B. C. & D., the appeal was heard ex parte in the absence of
C., and the Judicial Committee refused C. a rehearing (c).

The agent who is to represent a party before the Privy
Council, whether appellant or respondent, must have first
signed the form of declaration at the Privy Council Office
which is set out in an Order in Council, March 6, 1896 (d).
Every proctor or solicitor practising in London can subscribe
the declaration, upon producing the Incorporated Society's
certificates of each member of his firm for the current year,
without fee. Having signed the roll, the agent will be

(d) See Appendix C., p. 468.

PRACTICE ON APPEALS IN ENGLAND. 265

informed when the transcript of the record has arrived. It
is provided by rule 86 :

86. Where a party to an appeal, petition, or change of
other matter pending before His Majesty in Council a
changes his agent, such party, or the new agent,
shall forthwith give the Registrar of the Privy Council
notice in writing of the change.

It is also usual for the agent already on the register to
send a letter to the registrar stating that he retires and that
the new agent has paid his costs, and that he has handed
over all the papers in the case.

Where it is expected that a petition for leave to appeal Lodging
will be or has been lodged at the Privy Council Office, caveat-
but the record has not yet been registered at the registry,
any person who claims the right to appear before the
Judicial Committee on the hearing may lodge a caveat
in the matter, and will then receive notice of the lodg-
ing of the petition, and shall be entitled to require the
petitioner to serve him with a copy of the petition. If the
petition has been lodged he must give notice of his caveat to
the petitioner. The rule states :

48. Where a petition is expected to be lodged, or
has been lodged, which does not relate to any pending
appeal of which the record has been registered in the
Registry of the Privy Council, any person claiming a
right to appear before the Judicial Committee on the
hearing of such petition may lodge a caveat in the
matter thereof, and shall thereupon be entitled to
receive from the Registrar of the Privy Council notice
of the lodging of the petition, if at the time of the
lodging of the caveat such petition has not yet been
lodged, and, if and when the petition has been lodged,
to require the petitioner to serve him with a copy of
the petition, and to furnish him, at his own expense,
with copies of any papers lodged by the petitioner in
support of his petition. The caveator shall forthwith
after lodging his caveat give notice thereof to the
petitioner, if the petition has been lodged.

266

THE PRACTICE OF THE PEIVY COUNCIL.

Agent to
ascertain
arrival of
transcript

Application
for further
leave to
appeal.

Transmission
of transcript.

In order to be informed as early as possible of the arrival
of the transcript the agent should notify the title of the
appeal for the purpose of it being entered in the Enquiries
Book at the Council Office. He will then, on being notified
of its arrival and registration at the Council Office, be
informed of the registered number, and will be supplied with
an appearance form. It is necessary for both the agent for
the appellant as well as the agent for the respondent to enter
an appearance in the appeal. A fee of ten shillings is pay-
able on entering the appearance. If the transcript has not
been printed abroad, or if it has not been printed according
to the rules, it will be necessary that it shall be copied and
printed in England. A form of request to copy and print
will be supplied from the Council Office to the agent of the
appellant for his signature.

Where the appellant desires to appeal, not only from the
part of the decree in respect of which an appeal lies as of
right, but also from the rest of the decree in respect of
which no such right exists, an application for special leave
to appeal will be necessary (see supra, p. 213, Chapter YI.)
before the appeal comes on for hearing in England, notwith-
standing that the court appealed from has granted leave to
appeal so far as it has power to do so. The instructions
sent to the agent in London should be such as will enable
him to properly brief counsel to make such application. A
caveat may be entered by respondent against the granting of
such application without notice being first given to him.

In forwarding instructions to the London agent care must
always be taken to give him an accurate transcript of the
title of the appeal (the name of the appellant appearing first),
so that he may be able to search for the entry of the
arrival of the transcript record at the Council Office.

The registrar, or other proper officer having the custody
of records in the court or special jurisdiction from which
the appeal comes, is required to send by post, with all
possible despatch, a certified copy of the transcript record
in each cause to the Registrar of the Privy Council. This
should be done so soon as leave to appeal has been obtained,
whether by an order of the court appealed from or by an
Order of His Majesty in Council granting special leave to
appeal.

PRACTICE ON APPEALS IN ENGLAND. 267

A copy of the order granting leave is filed in the court Order grant-
appealed from, and that court is understood to give notice 6

to all parties that proceedings are now tied up pending the
result of an appeal to the Sovereign. Further, when the
record in the case reaches the Privy Council Office a letter is
addressed to the registrar below, intimating that unless the
appeal is prosecuted within two or four months it will stand
dismissed. (See p. 274.)

Normally the first step in the appeal in England is to see Preparation
to the preparation and printing of the record. The Rules of record-
of the Judicial Committee relative to this step are as
follow- »

I. — RECORD.

11. As soon as an appeal has been admitted, whether Record to be
by an order of the Court appealed from or by an Order ^fthoTtdeiay
of His Majesty in Council granting special leave to

appeal, the appellant shall without delay take all
necessary steps to have the record transmitted to the
Registrar of the Privy Council.

The procedure which the respondent may adopt when the
appellant does not comply with the provisions of this rule is
stated in rule -21 of the Colonial Appeal Rules. (See
Chapter II., p. 31.)

The respondent may, after giving the appellant due notice
of the application, apply to the colonial court for a certificate
that the appeal has not been effectually prosecuted by the
appellant.

12. The record shall be printed in accordance with Printing of
rules I. to IV. of Schedule A hereto. It may be so r
printed either abroad or in England.

Rules 12 — 18 are practically identical with rales 8 — 14 of
the Colonial Appeal Rules. Schedule A is as follows :

Rules as to Printing.

I. All records and other proceedings in appeals or other
matters pending before His Majesty in Council or the
Judicial Committee which are required by the above rules

268

THE PRACTICE OF THE PRIVY COUNCIL.

Number of
copies to be
transmitted,
where record
printed
abroad.

One certified
copy to be
transmitted,
where record
to be printed
in England.

to be printed shall henceforth be printed in the form known
as demy quarto.

II. The size of the paper used shall be such that the
sheet, when folded and trimmed, will be 1 1 inches in height
and 8| inches in width.

III. The type to be used in the text shall be pica type,
but long primer shall be used in printing accounts, tabular
matter, and notes.

IV. The number of lines in each page of pica type shall
be 47 or thereabouts, and every tenth line shall be numbered
in the margin.

V. The price in England for the printing by His Majesty's
Printer of 50 copies in the form prescribed by these rules
shall be 38s. per sheet (eight pages) of pica with marginal
notes, not including corrections, tabular matter, and other
extras.

13. Where the record is printed abroad, the registrar
shall, at the expense of the appellant, transmit to the
Registrar of the Privy Council 40 copies of such
record, one of which copies he shall certify to be
correct by signing his name on, or initialling, every
eighth page thereof and by affixing thereto the seal,
if any, of the court appealed from.

The old Order in Council required 48 plain copies and 2
certified copies to be sent.

14. Where the record is to be printed in England,
the registrar shall, at the expense of the appellant,
transmit to the Registrar of the Privy Council one
certified copy of such record, together with an index of
all the papers and exhibits in the case. No other
certified copy of the record shall be transmitted to the
agents in England by or on behalf of the parties to
the appeal.

The appellant only bears the expense in the first place ;
the costs of and incidental to the printing of the record
normally form part of the costs of the appeal. (See rule 28,
below, p. 276.)

PRACTICE ON APPEALS IN ENGLAND. 269

15. Where part of the record is printed abroad and Record.
part is to be printed in England, rules 13 and 14

shall, as far as practicable, apply to such parts as are in England.
printed abroad, and such as are to be printed in
England respectively.

16. The reasons given by the judge, or any of the Reasons for

judges, for or against any judgment pronounced in 3

the course of the proceedings out of which the appeal mitted.
arises, shall by such judge or judges be communicated
in writing to the registrar and shall by him be trans-
mitted 'to the Registrar of the Privy Council at the
same time when the record is transmitted.

17. The registrar, as well as the parties and their Exclusion
agents, shall endeavour to exclude from the record all

documents (more particularly such as are merely ments from
formal) that are not relevant to the subject-matter of
the appeal, and, generally, to reduce the bulk of the
record as far as practicable, taking special care to avoid
the duplication of documents and the unnecessary
repetition of headings and other merely formal parts
of documents ; but the documents omitted to be
printed or copied shall be enumerated in a list to
be placed after the index or at the end of the
record.

18. Where in the course of the preparation of a Documents
record one party objects to the inclusion of a docu- to^befindi-0
ment on the ground that it is unnecessary or irrelevant, cated.
and the other party nevertheless insists upon its being
included, the record, as finally printed (whether abroad
or in England), shall, with a view to the subsequent
adjustment of the costs of and incidental to such
document, indicate, in the index of papers, or other-
wise, the fact that, and the party by whom, the inclu-
sion of the document was objected to.

Rule 7 of the Colonial Appeal Rules provides that :
The preparation of the record shall be subject to the
supervision of the court and the parties may submit any

270

THE PRACTICE OF THE PRIVY COUNCIL.

Amendment
of record.

Registration
and num-
bering of
records.

Amendment
of docu-
ments.

disputed question arising in connection therewith to the
decision of the court, and the court shall give such directions
thereon as the justice of the case may require.

And rule 18 is to be read subject to this provision in the
colonial regulations of appeal.

It is further provided by rule 22 of the Colonial Rules of
Appeal that

Where at the time between the Order granting final
leave to appeal and the despatch of the record to England
the record becomes defective by reason of the death, or
change of status, of a party to the appeal, the court may,
notwithstanding the order granting final leave to appeal, on
an application in that behalf made by any person interested,
grant a certificate showing who, in the opinion of the court,
is the proper person to be substituted or entered on the
record in place of, or in addition to, the party who has died
or undergone a change of status, and the name of such
person shall thereupon be deemed to be so substituted or
entered on the record as aforesaid without express Order of
His Majesty in Council.

The procedure which must be followed where the record
becomes defective by reason of the death, etc., of a party after
its despatch to England is dealt with in Chapter XL, p. 305 ff.

19. As soon as the record is received in the Kegistry
of the Privy Council, it shall be registered in the said
registry, with the date of arrival, the names of the
parties, the date of the judgment appealed from, and
the description whether " printed " or " written." A
record, or any part of a record, not printed in accord-
ance with rules I. to IV. of Schedule A hereto, shall
be treated as written. Appeals shall be numbered
consecutively in each year in the order in which the
records are received in the said registry.

Power is given in the rules to amend any document
lodged in a matter pending before the Judicial Committee
by rule 84, which runs as follows :

84. Any document lodged in connection with an
appeal, petition or other matter pending before His

PRACTICE ON APPEALS IN ENGLAND. 271

Majesty in Council or the Judicial Committee, may be
amended by leave of the Registrar of the Privy Council,
but if the said registrar is of opinion that an applica-
tion for leave to amend should be dealt with by the
Committee in open court, he may, and if he receives a
written request in that behalf from any of the parties,
he shall, put such application in the paper for hearing
before the Committee at such time as the Committee
may appoint, and shall give all parties interested notice
of the time so appointed.

An Order may be made by the Judicial Committee for the
production of notes of evidence and the reasons given by the Addition to
judges as well on courts in any foreign dominion of the record.
Crown as on courts in any colony or foreign settlement (e).
Neglect to obey such Order of the Judicial Committee is
contempt, and punishable (/).

The transcript is regarded as the only authentic source
of information as to the proceedings which have taken place
in the court from which the appeal is brought (#), and the
Judicial Committee will not allow the judge's notes in
the transcript to be impugned by reference to shorthand
notes (h). The record should be concluded when judgment
is iriven (/). But if any document essential to the under-
standing of a cause has been omitted from the transcript, Documents

the Judicial Committee will, at any stage of the cause, not in tran-

. . , script.

require its transmission, by issuing (on petition) a Committee

order directing the registrar of the lower court to transmit
it ; or if undue delay occur in sending any documents,
direct the lower court to transmit it forthwith (&). Where Delay in
the document required is one which ought to have accom-
panied the transcript, it is generally obtained by an official

(e) 7 & 8 Viet. c. 69, s. 10. See Appendix A., p. 438.

(/) Ibid. s. 12.

&) Stanford v. Brunette (Cape of G. H. 1860), 14 Moo. 64 ; Donegani
v. Donegani (L. C. 1835), 3 Knapp, 63 ; Riche v. Foyer (L. C. 1874),
L. R. 5 P. C. at 481.

(h) Stanford v. Brunette, 14 Moo. 64.

(t) Brown v. Gugy, 2 Moo. (N. S.) at 365.

(k) For a petition for the purpose, see Casi Persad Narain v. Kawa
Be-si Kooer (Bengal, 1851), 5 Moo. I. A. 146 ; and see Mason v. Att.-
Gen. of Jamaica (1843), 4 Moo. 228 ; McCarthy v. Judah (L. Can.
1858), 12 Moo. 47.

272

THE PRACTICE OF THE PRIVY COUNCIL.

Contents of
transcript.

Index with
transcript.

Access to
transcript.

Marginal
notes and
index.

Appearance.

letter from the Registrar of the Privy Council by consent of
the parties without a Committee order. A similar course
is adopted in obtaining corrections of portions of the record.

Preparation of the Transcript. — The transcript has to be
accompanied by a correct and complete index of all papers,
documents, and exhibits put in below, and the decrees, judg-
ments, or orders pronounced, as well as necessary certificates
given from time to time by the officers of the courts below.
A copy of the security bond and of the judges' reasons
should be included in the transcript. The record should
also contain an index of all documents omitted, either by
consent of parties or as useless on appeal. Care is to be
taken not to allow any document to be set forth more than
once. No other certified copy of the record is to be trans-
mitted on behalf of the parties ; and the officer below should
transmit the original certified copy direct to the Registrar
of the Privy Council, and not, as is sometimes most irregu-
larly done, through the solicitor of the appellant in the
record.

The appellant's agent, where the transcript has not been
printed abroad, will require to peruse the record in order
to see what part is necessary to be printed for the hearing
of the case. Having perused the typed copy received from
the Council Office, he should communicate with the respon-
dent's agent in order to ascertain what part of the tran-
script he may require to be printed. In preparing the record
for the printer marginal notes should indicate the nature of
the documents, which should be numbered consecutively.
An index showing the documents printed and omitted is
agreed upon by the agents and printed immediately before
the record.

II. — APPEABANCE.

It is necessary for either party to enter an appearance in
the Council Office as a condition of taking any effective
steps in the appeal. An appearance cannot be entered by
either party till the record has arrived when the appeal has
been granted by the court appealed from, or after special
leave to appeal has been given by the Judicial Committee.
So soon as an appearance has been entered, an account is
opened with the agent on the roll in the Council Office. It
is provided by the Judicial Committee Rules :

PRACTICE OX APPEALS IN ENGLAND. 273

20. The parties shall be entitled to inspect the record
and to extract all necessary particulars therefrom for
the purpose of entering an appearance.

The limit of time within which the appellant must enter Limit of time
an appearance is the same as that within which he must ^reQ^llant
hespeak a copy of the record. (See p. 274, below.) appearance.

The Judicial Committee Rules further provide :

22. The appellant shall forthwith, after entering his Notice of
appearance, give notice thereof to the respondent, if
the latter has entered an appearance.

The rules for the entering of an appearance by the
respondent are numbers 38-41, and are dealt with more
fully later. They provide as follows :

38. The respondent may enter an appearance at Time within
any time between the arrival of the record and the

hearing of the appeal, but if he unduly delays entering may appear,
an appearance he shall bear, or be disallowed, the
costs occasioned by such delay, unless the Judicial
Committee otherwise direct.

39. The respondent shall forthwith after entering Notice of
an appearance give notice thereof to the appellant, if

the latter has entered an appearance. dent-

40. Where there are two or more respondents, and Form of
only one, or some, of them enter an appearance, the ^here^fuhe
appearance form shall set out the names of the respondents

n do not

appearing respondents. appear.

41. Two or more respondents may, at their own Separate
risk as to costs, enter separate appearances in the same a
appeal.

A respondent who has not entered an appearance is not
entitled to receive any notices relating to the appeal from
the Registrar of the Privy Council, or to lodge a case.
After entering an appearance the appellant must see to the
preparation of the record if it does not arrive in the required
form. When the record arrives in England wholly or partly
written, the appellant must take steps to have it printed

p.c. 18

274

THE PRACTICE OF THE PRIVY COUNCIL.

record shall
be bespoken

within a reasonable time. Otherwise he runs the risk of
having his appeal dismissed. (See rule 34, p. 293.)

The limits of time provided for the appellant by the rules
are as follows :

Times within 21. Where the record arrives in England either
wholly written, or partly written and partly printed,
the appellant shall, within a period of four months
from the date of such arrival in the case of appeals
from courts situate in any of the countries or places
named in Schedule B hereto, and within a period of
two months from the same date in the case of appeals
from any other courts, enter an appearance and
bespeak a type-written copy of the record, or of such
parts thereof as it may be necessary to have copied,
and shall engage to pay the cost of preparing such
copy at the following rates per folio typed (exclusive of
tabular matter) — I%d. per folio of English matter, 2d.
per folio of Indian matter, and 3d. per folio of foreign
matter.

The countries or places mentioned in Schedule B are : —

Australia (and the constituent states thereof).

Basutoland.

British East Africa.

British Honduras.

British North Borneo.

Brunei.

Ceylon.

China.

Eastern African Protectorates.

Falkland Islands.

Federated Malay States.

Fiji.

Hong Kong.

India.

Mauritius.

New Zealand.

Persia.

Seychelles.

PRACTICE ON APPEALS IN ENGLAND. 275

Somaliland Protectorate.
Straits Settlements.
Zanzibar.

The list corresponds with the old category of colonies and
plantations east of the Cape of Good Hope, in respect of
which the old time limit for printing and prosecuting the
appeal was six months. Bj the new rules the appellant
must enter an appearance and see to the printing within four
months when the record arrives in England from one of
these places written. If the record comes from any place
not included in Schedule B the appellant must proceed with
the printing within three months when it arrives written.
In either case he must lodge his petition within one month
later. (See pp. 278 — 9.)

The rules for printing the record run thus :

23. As soon as the appellant has obtained the type- Preparation
written copy of the record bespoken by him, he shall ^c^^ °f
proceed, with due diligence, to arrange the documents printer.

in suitable order, to check the index, to insert the
marginal notes and check the same with the index, and,
generally, to do whatever may be required for the pur-
pose of preparing the copy for the printer, and shall,
if the respondent has entered an appearance, submit
the copy, as prepared for the printer, to the respondent
for his approval. In the event of the parties being
unable to agree as to any matter arising under this rule,
such matter shall be referred to the Registrar of the
Privy Council, whose decision thereon shall be final.

24. As soon as the type-written copy of the record Lodging copy
is ready for the printer, the appellant shall lodge it,

with a request to the Registrar of the Privy Council
to cause it to be printed by His Majesty's Printer or by
any other printer on the same terms, and shall engage
to pay at the price specified in rule V. of Schedule A
hereto the cost of printing fifty copies thereof, or such
other number as in the opinion of the said registrar
the circumstances of the case require.
For rule V of Schedule A, see p. 2G8.

18—2

276

THE PRACTICE OF THE PRIVY COUNCIL.

Examining
proof of
record.

Examination
of proof of
record and
striking off
copies.

Number of
copies of
record for
parties.

How costs
of printing
record are
to be borne.

A further precaution to secure the accuracy of the record is
provided by the rule which required the registrar to give
notice to all parties who have entered an appearance to
attend to examine together the proof of the record.

26. The Registrar of the Privy Council shall, as soon
as the proof prints of the record are ready, give notice
to all parties who have entered an appearance request-
ing them to attend at the Registry of the Privy
Council at a time to be named in such notice in order
to examine the said proof prints and compare the same
with the certified record, and shall, for that purpose,
furnish each of the said parties with one proof print.
After the examination has been completed, the
appellant shall, without delay, lodge his proof print,
duly corrected, and (so far as necessary) approved by
the respondent, and the Registrar of the Privy Council
shall thereupon cause the copies of the record to be
struck off from such proof print.

27. Each party who has entered an appearance
shall be entitled to receive, for his own use, six copies
of the record.

The costs of and incidental to the printing of the record
normally form part of the costs of the appeal, but if either
party has objected to the inclusion of a particular document
which has been marked accordingly as the subject of
objection, and if on taxation of costs the document is held
to be unnecessary or irrelevant, the costs of and incidental
to its printing must be borne by the party responsible for
its inclusion.

28. Subject to any special direction from the Judicial
Committee to the contrary, the costs of and incidental
to the printing of the record shall form part of the
costs of the appeal, but the costs of and incidental to
the printing of any document objected toby one party,
in accordance with rule 18, shall, if such document is
found on the taxation of costs to be unnecessary or

PRACTICE ON APPEALS IN ENGLAND. 277

irrelevant, be disallowed to, or borne by, the party
insisting on including the same in the record.

While the appeal is still before the Colonial Court, or after Submitting
the transcript has arrived in England, it may appear to the sp60^10*86-
parties that the decision of the matter is likely to turn
exclusively on a question of law. In such a case an applica-
tion may be made to the Registrar of the Privy Council for
the purpose, and with his sanction the question of law may
be submitted to the Judicial Committee in the form of a
special case.

When this procedure is followed, the whole record need not
be printed, but only those parts of it which bear upon the
special point of law to be submitted. In order to save the
parties the expense which the statement of the case in full
involves, the Registrar of the Privy Council may endeavour
to narrow down the issue in an appeal to a special question
of law, and report accordingly to the Judicial Committee.

The rule of the Judicial Committee which treats of such
cases provides as follows :

25. Whenever it shall be found that the decision of Special case,
a matter on appeal is likely to turn exclusively on a
question of law the parties, with the sanction of the
Registrar of the Privy Council, may submit such
question of law to the Judicial Committee in the form
of a special case, and print such parts only of the
record as may be necessary for the discussion of the
same. Provided that nothing herein contained shall
in any way prevent the Judicial Committee from order-
ing the full discussion of the whole case, if they shall
BO think fit, and that, in order to promote such
arrangements and simplification of the matter in
dispute, the said registrar may call the parties before
him, and having heard them, and examined the record,
may report to the Judicial Committee as to the nature
of the proceedings.

III. — PETITION OF APPEAL AND PREPARATION OF CASE.

Normally, the next step to be taken in the appeal after Lodging the
the printing of the record has been completed, is for the Petiti°n of

appeal.

278

THE PRACTICE OF THE PRIVY COUNCIL.

Limit of time
for lodging
appeal.

Times within
which peti-
tion shall be
lodged.

appellant to lodge his petition of appeal. The rules, indeed,
allow an appellant to lodge his petition of appeal prior to
the arrival of the record in the country, if there are special
reasons which render that course desirable. The Code of
Civil Procedure in Quebec contemplates this procedure in
certain cases where the appellant desires the execution of a
judgment to be stayed, and provides that a certificate of the
lodging of the appeal will be given by the Registrar of the
Privy Council for filing with the clerk of the court which
rendered the judgment. It is usual in such appeals for the
officers of the court below to send to the Registrar of the
Privy Council a certificate that the appeal has been admitted.
The appellant's agent obtains a copy of the certificate, and
draws the petition of appeal from the particulars given
therein and the instructions which he has received.

The time is fixed in all cases within which the appellant
must lodge his petition of appeal. The new rules provide the
limit of time for two sets of circumstances, which again are
each sub-divided according to two further contingencies :

1. When the record arrives in England printed:

(a) From countries named in Schedule B, four months

from the date of arrival ;

(b) From any other countries or places, two months from

that date.

2. Where the record arrives in England written :

(a) From countries named in Schedule B ;

(b) From any other countries ;

within one month from the date of completion of the printing,
i.e.9 in cases which fall within (a) not more than five months
after the arrival of the record in England ; and in cases which
fall within (b) not more than three months after that event.

Petition of Appeal.

29. The appellant shall lodge his petition of Appeal :
(a) Where the record arrives in England printed,
within a period of four months from the date
of such arrival in the case of appeals from
courts situate in any of the countries or
places named in Schedule B hereto, and
within a period of two months from the same

PRACTICE ON APPEALS IN ENGLAND. 279

date in the case of appeals from any other
courts ;

(b) Where the record arrives in England written,
within a period of one month from the date of
the completion of the printing thereof :
Provided that nothing in this rule contained shall
preclude an appellant from lodging his petition of appeal
prior to the arrival of the record, if there are special
reasons why it should be desirable for him to do so.

Where an appeal has been brought as of right from a Jurisdiction
decision of the court below, the Judicial Committee has
questioned whether it has jurisdiction to entertain any
application in the appeal until the petition of appeal has been
lodged. Gungadhur Seal v. Sreenatty Dossee, 9 Moo. 411 ;
How v. Kirchner, 11 Moo. 21. But as soon as the petition
is lodged, the Judicial Committee is fully seised of the
case, and can report upon it.

Every party who feels aggrieved by a decree ought to Cross appeals,
appeal against that part of it which he complains of (I).
Each party so appealing should lodge a petition of appeal at
the Council Office. A petition for leave to enter a cross
appeal is addressed to His Majesty in Council. Where a
cross appeal was ordered to come to a hearing on the same
printed case as the principal appeal, liberty was reserved to
respondent, if the principal appeal was dismissed for non-
prosecution, to prosecute the cross appeal as a separate cause.
If the appeal is from part only of a decree, the whole is not
open to the respondent, who should therefore present a cross
appeal if he desires to review the whole decree. In an appeal
bjAmbard and Another • v. The Trinidad Asphalt Co., where it
was alleged in the petition of the respondents that the order
appealed from was in the main favourable to them, the
Sovereign in Council made an order on the respondents' peti-
tion giving them leave to appeal from so much of the order
as was adverse to them. P. C. Arch., November 29, 1898.

Leave to the respondents to agree to cross appeal may be

(1) Nona Naran Raov. Pant Bheo, 11 Moo. 36 ; Omanath Chowdry
v. Sheikh Nvjeeb Chowdry, 8 Moo. I. A. 68 ; Myna Barjee v.
Ootoran 8 Moo. I. A. 400.

280 THE PRACTICE OF THE PRIVY COUNCIL.

given at the hearing, though a petition has not been lodged
before. Of. Toronto Railway Co. v. King, (1908) A. C. 260.

The respondents there asked in their printed case that the
verdict of the jury which had been upheld by the Court of
Appeal should be restored, bat did not lodge a cross petition
to that effect, and their lordships being of opinion that the
necessary relief would have been granted, if they had
applied for it at the time, the appellants obtained special
leave to appeal allowed them to put in such a petition at
the hearing. And when the merits of the case are clear,
and the Judicial Committee have given leave to bring a
cross appeal, it may grant the respondents what they would
have been entitled to if they had entered a cross appeal,
though it had not in fact been entered. Cf. Cassin Ahmed
Jervav. Naranan Chelty, 37 I. A. 133.

The respondents there had obtained a decree from the
appellate court in Lower Burmah for the amount of a
promissory note executed by the appellant, and by a consent
Order in Council they were given leave to appeal on the
point that the decree did not include interest. They entered
no cross appeal, but on the appellant's appeal being dismissed,
it was held that the Respondents might have the decree
amended as they asked.

Form of 30. The petition of appeal shall be lodged in the

pet form prescribed by rule 47 hereinafter contained. It

shall recite succinctly and, as far as possible, in
chronological order, the principal steps in the
proceedings leading up to the appeal from the
commencement thereof down to the admission of the
appeal, but shall not contain argumentative matter
or travel into the merits of the case.

The petition of appeal may be drawn by counsel : material
for the purpose may be obtained from the transcript, as has
already been mentioned, and this step may be taken before
any appearance has been entered by the respondent. The
petition contains in general a narrative or abstract of the
proceedings in the court below, with a conclusion alleging
that the petitioner is aggrieved by the judgment, has
obtained leave to appeal from it in the colony or here
and now prays for its reversal or alteration. If the appeal

PRACTICE OX APPEALS IN ENGLAND. 281

is not from the whole judgment, the petition should specify
the part of the judgment complained of, and the orders (if
any) appealed against. The narrative should be short,
and the draughtsman should be most particular about dates,
as some error in date might eventually creep into the
Final Order of the Judicial Committee. (For the form
prescribed by rule 47, see p. 258, and see Appendix I,
p. 472.)

The petition of appeal is lodged by bringing it into the Lodging
Privy Council Office and leaving it with the officers there, petition,
who make a memorandum of the date when it is deposited.

31. The appellant shall, after lodging his petition Service of
of appeal, serve a copy thereof without delay on the pet
respondent, as soon as the latter has entered an
appearance, and shall endorse such copy with the date
of the lodgment.

When the petition of appeal has been lodged, by virtue of
the general order of reference the appeal is now pending
before the Sovereign in Council and becomes liable to be
dismissed with costs under rule o(J ofc the Order in Council
of 1908, if it is not set down within twelve months. (See
p. 294.)

When the appellant desires to proceed with the appeal,
after lodging his petition he must take steps to see that
the respondents shall appear, in case they have not already
entered an appearance. He must next lodge his own case,
and should the respondents fail to lodge a case he may serve
a case notice on them. (See p. 288.) It occasionally happens Supplemental
that after the transcript record arrives in England it is record-
followed by a supplemental record. When this is the case,
the limit of time for printing of two or four months, as the
case may be, runs from the arrival of the original record.

So soon as the record has arrived where the leave has been
granted below, or so soon as special leave has been granted
in England, the respondent may enter an appearance (m). In Respondent to
the last resort, if a respondent does not come in within ** 8ervecl-
three months after the petition of appeal is lodged, and it
appears that he has received notice of the appeal, the

(m) Retemeyer v. Obermulkr (British Guiana, 1837), 2 Moo. at 98.

282

THE PRACTICE OF THE PRIVY COUNCIL.

Service of
petition in
a special
reference.

Respondent's
appearance.

Non-appear-
ing respon-
dent not
entitled to
receive
notices or
lodge case.

Non-appear-
ance of
respondent.

Procedure on
non-appear-

appellaDt is at liberty to set down the appeal ex parte
against him. (See below.) Their lordships may specifically
direct in the order granting special leave that the respondent
must be served with the copy of the order.

Special reference. — Where a petition is specially referred
under sect. 4 of 3 & 4 Will. IV. c. 41 to the Judicial Committee
or to a Committee of the Privy Council, and the respondent
would have no notice that such a petition was about to
be preferred, as he would have when leave to appeal has
been given by a court below, it would appear to be the
right practice for the appellant to serve the respondent
personally with notice of the petition.

If the respondent has appeared, both parties proceed
to prepare their respective cases. But the appellant may
prepare his case at any time.

The rules dealing with the right of the respondent to enter
an appearance at any time between the arrival of the
record and the hearing of the appeal have been set out
above. Until the respondent has entered an appearance he
is not entitled to receive any notices either of the arrival
of the record or of any other step in the appeal from the
Eegistrar of the Prify Council ; nor can he lodge a case
in the appeal.

42. A respondent who has not entered an appear-
ance shall not be entitled to receive any notices
relating to the appeal from the Eegistrar of the Privy
Council, nor be allowed to lodge a case in the appeal.

If the respondent, though served by the appellant with
notice of the leave to appeal, and notice of the despatch of
the record to England, fails to put in an appearance, the
rules provide that the appellant, after the expiration of three
months from the date of the lodging of the appeal or
the date on which the respondent, if added as a party
subsequently to the admission of the appeal, was served
with a copy of the order making him a party, may set
down the appeal ex parte against him.

The rule which states the procedure is as follows :

43. Where a respondent fails to enter an appearance
in an appeal, the following rules shall, subject to any

PRACTICE ON APPEALS IN ENGLAND. 283

special Order of the Judicial Committee to the contrary, ance of
apply: respondent,

(a) If the non-appearing respondent was a respon-

dent at the time when the appeal was admitted,
whether by the order of the court appealed
from or by an Order of His Majesty in Council
giving the appellant special leave to appeal,
and it appears from the terms of the said
order, or Order in Council, or otherwise from
the record, or from a certificate of the regis-
trar of the court appealed from, that the said
non-appearing respondent has received notice,
or was otherwise aware, of the order of the
court appealed from admitting the appeal, or
of the Order of His Majesty in Council giving
the appellant special leave to appeal, and has
also received notice, or was otherwise aware,
of the despatch of the record to England, the
appeal may be set down ex parte as against
the said non-appearing respondent at any
time after the expiration of three months
from the date of the lodging of the petition of
appeal ;

(b) If the non-appearing respondent was made a

respondent by an Order of His Majesty in
Council subsequently to the admission of the
appeal, and it appears from the record, or
from a supplementary record, or from a
certificate of the registrar of the court
appealed from, that the said non-appearing
respondent has received notice, or was other-
wise aware, of any intended application to
bring him on the record as a respondent, the
appeal may be set down ex parte as against
the said non-appearing respondent at any
time after the expiration of three months
from the date on which he shall have been

284 THE PRACTICE OF THE PRIVY COUNCIL.

served with a copy of His Majesty's Order
in Council bringing him on the record as a
respondent.

Provided that where it is shown to the satisfaction
of the Judicial Committee, by affidavit or otherwise,
either that an appellant has made every reasonable
endeavour to serve a non-appearing respondent with the
notices mentioned in clauses (a) and (b) respectively
and has failed to effect such service, or that it is not
the intention of the non-appearing respondent to enter
an appearance to the appeal, the appeal may, without
further order in that behalf and at the risk of the
appellant, be proceeded with ex parte as against the
eaid non-appearing respondent.

The last provision secures that where the respondent is
acting in a way to evade service, or where it is clear that
he does not intend to enter an appearance, the appellant
may dispense with service of the notice, and at his own
risk may proceed ex parte with the appeal against the
respondent.

Consolidation Where several decrees in one suit or in cross suits. —
>f appeals. Where two or more parties appeal against one decree, or
' where the same party appeals against several decrees,
whether made in the same suit (>i) or in cross suits, the
Judicial Committee will, if the ends of justice seem likely
to be furthered thereby, permit them to be consolidated,
and to come on for hearing upon one printed case on each
side and a single appendix ; and this permission may
be given upon the application either of appellant or
respondent (0). It has been noted that the Colonial Rules
of Appeal empower the court from which the appeal is
brought in most cases to consolidate suits on the application
for leave to appeal, where it seems to be convenient. (See
p. 28.) It may be, however, that the possibility or desir-
ability of consolidation does not become apparent till the

(n) Campbell v. Dent (British Guiana, 1838), 2 Moo. at p. 299.

(o) Retemeyer v. Obermuller (Berbice, 1838), 2 Moo. 93 ; Colonial
Bank v. Warden, 5 Moo. 340 ; Prinsep and East India Company v.
Dyce Sombre and others, 10 Moo. 232.

PRACTICE ON APPEALS IN ENGLAND. 285

record has reached England ; and then a petition to con-
solidate must be brought before the Judicial Committee.
But it is an established practice of the Board not to
entertain any PS part? application to consolidate unless
every effort is first made on the part of the appellant by
service of notice (of which evidence by affidavit is required),
to induce each respondent to enter an appearance and be
represented. In the appeals between Maharani Indar
Kinuvar and Another v. Maharain Jaipal Kunward, three
appeals from Oude, the question of consolidation was dis-
cussed on the hearing of a petition presented for that
purpose. Their lordships made an order that the petition
" be dismissed with liberty to the petitioners to renew the
application when the proper steps have been taken to
bring in the respondents in the said appeal " (p). In the
appeal of Henderson v. Atwood and Others, from Jamaica,
a petition to consolidate was opposed by certain of the
parties and was dismissed (q).

Where distinct suits. — Where two appeals deal practically
with the subject-matter and there would be a saving of
expense if heard together, an order of consolidation may be
made although the suits are distinct (r). Several suits,
each for a sum less than the appealable amount, may be
consolidated if there is some special ground. (See above,
Chapter V., p. 199.) For a form of petition for con-
solidation, see Appendix D (*).

If the respondent has entered an appearance to the appeal, Preparation
then both he and the appellant proceed to the preparation of of case>
their respective cases. If he has not entered an appearance,
then after the interval provided for in rule 43, supra, the
appellant alone proceeds with the preparation of his case,
which will have been set down e.r parte against the respon-
dent. The rules make the lodging of a case a necessary
step for all parties in the appeal, except in special
circumstances.

(p) P. U Arch. July 9, 1887.

(q) P. C. Arch. June 24, 1893.

(r) Hiddingh v. Denyssen (C. G. H. 1886), 12 A. C. 107 ; cf. Ex
parte Gopal Lai Thakoor (Bengal, 1860), 8 W. R. 224 ; Moofti Mohum-
mitd Ubdoollah and Another v. Baboo Mootechund (Bengal, 1837), 1 Moo.
I. A. 363.

(*) Infra, p. 474.

286

THE PRACTICE OF THE PRIVY COUNCIL.

Lodging
of case.

The case.

Exchange
of cases.

Drawn by
counsel.

Case.

60. No party to an appeal shall be entitled to be
heard by the Judicial Committee unless he has
previously lodged his case in the appeal. Provided
that where a respondent is merely a stakeholder or
trustee with no other interest in the appeal, he may give
the Eegistrar of the Privy Council notice in writing
of his intention not to lodge any case, while reserving
his right to address the Judicial Committee on the
question of costs.

The transcript, or so much of it as may be necessary for
the purpose, is laid before counsel to enable him to draw
the case. Each case is required to be signed by one or
more of the counsel, who shall attend at the hearing of the
cause. When both cases are lodged, but not before, the
respective cases are exchanged between the agents, and the
opponents then for the first time see one another's plan of
argument.

The case consists of a detailed statement of the proceedings
in the court below, or such parts of them as are favourable
to the purposes of the appellant or respondent, as the
case may be, and should show the orders made below, and,
in conclusion, the reasons or grounds of appeal should be
shortly set forth. The party (appellant or respondent)
should state the facts as they were proved in the court
below. He may also, if he please, argue the law which
arises upon them, and may cite legal authority in support
of the argument in such mode as he deem most expedient
for the interest of his cause. The cases are generally drawn
by the junior, and settled by the leading and junior counsel
in consultation, and usually signed by both. The General
Council of the Bar has recently stated that it is not in
accordance with the etiquette of the Bar for an English
King's Counsel to draft or settle a petition or case in
proceedings before the Privy Council without the assistance
of a junior. The cases are prepared by each side without
consultation with one another, and are lodged in the Council
Office when printed. The cases are printed as directed by
the Order in Council of 1908.

PRACTICE OX APPEALS IN ENGLAND. 287

References to Documents. — Where, in framing the printed Marginal
cases, documents are referred to, care ought to be taken to
insert marginal references to the documents printed in the
record.

61. The case may be printed either abroad or in Printing of
England, and shall, in either event, be printed in c
accordance with rules I. to IV. of Schedule A hereto

(see p. 267), every tenth line thereof being numbered in
the margin, and shall be signed by at least one of the
counsel who attends at the hearing of the appeal
or by the party himself if he conducts his appeal in
person.

62. Each party shall lodge forty prints of his Nr^^°bfe

case. lodged.

63. The case shall consist of paragraphs numbered Form of
consecutively and shall state, as concisely as possible,

the circumstances out of which the appeal arises, the
contentions to be urged by the party lodging the
same, and the reasons of appeal. References by page
and line to the relevant portions of the record as
printed shall, as far as practicable, be printed in the
margin, and care shall be taken to avoid, as far as
possible, the reprinting in the case of long extracts
from the record. The taxing officer, in taxing the
costs of the appeal, shall, either of his own motion,
or at the instance of the opposite party, inquire into
any unnecessary prolixity in the case, and shall
disallow the costs occasioned thereby.

As two respondents may at their own risk as to costs
enter separate appearances, so also they may lodge separate
cases in the same appeal.

64. Two or more respondents may at their own Separate
risk as to costs, lodge separate cases in the same twoor more

appeal. respondents.

Either party, after lodging his case, must give notice

288

THE PRACTICE OF THE PRIVY COUNCIL.

Notice of

°f

Case notice.

of that step to the other, so that their cases may be
exchanged.

65. Each party shall, after lodging his case, forth-
with &ive notice thereof to the other party.

When the party has taken this step, he may within
three days after giving the notice of lodging his case to
the other, serve him with a case notice, as provided in
rule 6G. (See form, App. D, p. 475.)

66. Subject as hereinafter provided, the party who
lodges his case first may, at any time after the
expiration of three clear days from the day on which
he has given the other party the notice prescribed by
the last preceding rule, serve such other party, if the
latter has not in the meantime lodged his case, with
a "case notice," requiring him to lodge his case
within one month from the date of the service of the
said case notice and informing him that, in default of
his so doing, the appeal will be set down for hearing
ex parte as against him, and if the other party fails
to comply with the said case notice, the party who
has lodged his case may, at any time after the
expiration of the time limited by the said case notice
for the lodging of the case, lodge an affidavit of service
(which shall set out the terms of the said casenotice),
and the appeal shall thereupon, if all other conditions
of its being set down are satisfied, be set down ex
parte as against the party in default. Provided that
no case notice shall be served until after the com-
pletion of the printing of the record and that it shall
be open to the taxing officer, in adjusting the costs
of the appeal, to inquire, generally, into the circum-
stances in which the said case notice was served
and, if satisfied that there was no reasonable
necessity for the said case notice, to disallow the costs
thereof to the party serving the same. Provided also
that nothing in this rule contained shall preclude the

PRACTICE ON APPEALS IN ENGLAND. 289

party in default from lodging his case, at his own
risk as regards costs and otherwise, at any time up to
the date of hearing.

There is no express limit of time for lodging the printed
case on either side ; but the object of the rule is to prevent
undue delay in preparing the case, either on the part of
the appellant or the respondent after the completion of the
printing of the record. It is to be noted, however, (1) that
the serving of the case notice will not be allowed on taxa-
tion unless unreasonable delay is shown ; and (2) that the
notice does not prevent the other party from lodging his case.

Where it is desired to introduce fresh evidence on the New evi-
hearing of the appeal, a petition to the Judicial Committee dence-
should be presented for that purpose (/). Where necessary
a Commission to examine witnesses may be issued. See
sect. 7 of 3 & 4= Will. IV. c. 41 (u). The Judicial

(t) Meiklejohn v. Att.-Gen. of Lower Canada (1834), 2 Knapp, 330 ;
and see Jephson v. Riera (Gib. 1835), 3 Knapp, at 136, 140.

(u) Such a Commission was issued in Falle v. Le Sueur (Jersey,
1859), 12 Moo. 501. For form of Commission appointing special
examiner, see ibid, at p. 520. In The Bank of China, Japan, and the
Straits, Ltd. v. The American Trading Co., such a Commission to take
further evidence in London was issued: (1894) A. C. 266, 272.
See also Mellin v. Mellin, 2 Moo. 493. Where it is intended to
use in evidence a document not before the court below, a motion for
an order should be made before the hearing. Canepa v. Larios ( 1834),
2 Knapp, at pp. 277, 278 ; Meiklejohn v. Att.-Gen. and Caldwell, ibid.
at p. 330 ; Hughes v. Porral (1842), 4 Moo. at p. 50. Although fresh
evidence is sometimes admitted on appeals, the Judicial Committee
will generally decline to admit it unless tendered in the court below,
unless some strong ground is made out. Cf. Harrison v. Harrison
(Arches Court of Canterbury, 1842), 100; Colby v. Watson, The
Endeavour (1848), 6 Moo. 334. As to the admission of further
evidence, cf. Anon. (1855), 9 Moo. 434 ; Kirby v. The Scindia (Vice-
Adm. Court, C. of G. H. 1866), 4 Moo. (N. S.) 84 ; Hocquard v. The
Queen, The Newport (Vice-Adm. Court, St. Helena, 1857), 11 Moo.
(N. S.) 155 ; The Laura (Vice-Adm. Court, Antigua, 1865), 3 Moo.
(N. S.) 181. In an appeal from Jersey, on a petition presented by
the appellants praying that certain documents not referred to in the
court below scheduled thereto might be treated as part of their case,
the Judicial Committee ordered that the appellants should be at
liberty tb lodge them in the office of the Registrar of the Privy Council
and that they might be referred to on the appeal, subject to any
objection as to their admissibility. Att.-Gen. of Jersey v. Le Moignan,
(1892) A. C. 402. In another recent case, Blue and Deschamps v. Red
Mountain Railway, (1909) A. C. 36, the Judicial Committee admitted
evidence which the Appellate Court in the Colony was precluded from
admitting because it was not in the evidence at the original hearing.
Where the ground for an examination of witnesses viva voce is that
they were tampered with previously to their examination below,
direct proof must be given. Craig v. Farnett (1849), 6 Moo. 448.

p.c. 19

290

THE PRACTICE OF THE PRIVY COUNCIL.

Setting down
ex parte.

Committee has power to appoint one of the clerks of the Privy
Council to take any formal proofs. 7 & 8 Viet., c. 69,
s. 8.

In the contingency of the respondent not entering an
appearance (after notice in accordance with rule 43) the
appellant may proceed ex parte. And in the event of one
party not lodging a case after notice in accordance with
the last rule, the other party may likewise set down the
case ex parte. But subject to these two provisions, an appeal
is set down ipso facto as soon as the cases on both sides are
lodged.

Setting down
appeal and
exchanging

67. Subject to the provisions of rule 43 and of the
last preceding rule, an appeal shall be set down ipso
facto as soon as the cases on both sides are lodged,
and the parties shall thereupon exchange cases by
handing one another, either at the offices of one of
the agents or in the Eegistry of the Privy Council,
ten copies of their respective cases.

Hearing
ex parte.

Respondent
appearing
after order to
hear ex parte.

Binding
record.

But even after a cause has been set down for hearing ex
parte, if the other party lodge his printed case before the
day appointed for argument, the Judicial Committee will
allow him to appear at the hearing, and argue the case in
the usual way. Should he, however, so far delay the
bringing in of his printed case that the necessary copies
can neither be conveniently distributed among the members
of the Board, nor be seen and considered by the opposite
party, the delay will be a good ground for applying to the
court to postpone the hearing, and to make the party in
default pay the costs of the day. As to costs up to lodging
of case, where at the last counsel do not appear to argue,
see " Costs," infra.

When the cases of the two parties have been duly lodged
and exchanged between the parties, the record and the cases
must be bound together for the use of the members of the
Judicial Committee by the appellant. The rules for
binding the record are as follows :

PRACTICE ON APPEALS IN ENGLAND. 291

Binding Records, etc.

68. As soon as an appeal is set down, the appellant ^°^e °f
shall attend at the Registry of the Privy Council and records, etc.,
obtain ten copies of the record and cases to be bound j^]^0*
for the use of the Judicial Committee at the hearing. Committee.
The copies shall be bound in cloth or in half leather

with paper sides, and six leaves of blank paper shall
be inserted before the appellant's case. The front
cover shall bear a printed label stating the title and
Privy Council number of the appeal, the contents of
the volume, and the names and addresses of the
London agents. The several documents, indicated
by incuts, shall be arranged in the following order :
(1) Appellant's Case ; (2) Respondent's Case ; (3)
Record ; (4) Supplemental Record (if any) ; and the
short title and Privy Council number of the appeal
shall also be shown on the back.

69. The appellant shall lodge the bound copies not Time within
less than four clear days before the commencement of

the sittings during which the appeal is to be heard. be

The cause being set down in its proper place in the list Setting down
comes on in due order for argument before the Judicial r lst*
Committee.

19—2

CHAPTER X.

DISMISSAL FOR NON-PROSECUTION AND WITHDRAWAL OF
APPEALS.

AN appellant must either prosecute his appeal to the
Privy Council with due diligence or withdraw it. If he
does not take any of the steps required for the regular
prosecution of the appeal within the time prescribed by
the rules of the Judicial Committee, or within reasonable
time, he runs the risk of having his appeal dismissed
without a hearing. Dismissal may take place at various
stages.

I. DISMISSAL IN THE COLONY.

Dismissal in It has already been pointed out that if the appellant
colony. (joes not take effectual steps to prosecute the appeal in the

colony by procuring the despatch of the record to England,
the respondent may apply to the Colonial Court for a certifi-
cate that the appeal has not been effectually prosecuted ;
and if the court grants the certificate, the appeal shall
therefore stand dismissed.

The rule to this effect is No. 21 of the Colonial Appeal Rules.
Where an appellant, having obtained final leave to appeal,
fails to show due diligence in taking all necessary steps for
the purpose of procuring the despatch of the record to
England, the respondent may, after giving the appellant
due notice of his intended application, apply to the court
for a certificate that the appeal has not been effectually
prosecuted by the appellant, and if the court sees fit to
grant such a certificate, the appeal shall be deemed, as
from the date of such certificate, to stand dismissed for
non-prosecution without express Order of His Majesty in
Council, and the costs of the appeal and the security entered
into by the appellant shall be dealt with in such manner
as the court may think fit to direct.

DISMISSAL FOR NON-PROSECUTION. 299

II. DISMISSAL IN ENGLAND.

If the record has been transmitted to England, the
appeal can only be dismissed at the instance of the
registrar if the appellant take no steps at all to prosecute
it within a prescribed time. If the appellant has gone so
far as to lodge a petition of appeal, then the case is before
the Judicial Committee, and it can be dismissed only by
a King's order.

The Judicial Committee Rules which provide for the
dismissal of an appeal from a prosecution when the record
has been despatched to England, are as follows :

Non-Prosecution of Appeal.

34. Where an appellant takes no step in prosecution Dismissal of
of his appeal within a period of four months from the aPPeUantiere
date of the arrival of the record in England in the case takes no step
of an appeal from a court situate in any of the countries thereof?01

or places named in Schedule B hereto, or within a
period of two months from the same date in the case
of an appeal from any other court, the Registrar of
the Privy Council shall, with all convenient speed, by
letter notify the registrar of the court appealed from
that the appeal has not been prosecuted, and the appeal
shall thereupon stand dismissed for non-prosecution
as from the date of the said letter without further
order.

35. Where an appellant who has entered an appear- Dismissal of
ance— appeal for

non-prosecu-

(a) fails to bespeak a copy of a written record, or tion after

of part of a written record, in accordance appearance
with, and within the periods prescribed by, and before

i n-i r- r .1 lodgment of

rule 21 [i.e., four or two months, as the case petition of
may be, see p. 274] ; or appeal.

(b) having bespoken such copy within the periods

prescribed by rule 21, fails thereafter to pro-
ceed with due diligence to take all such
further steps as may be necessary for the

294

THE PRACTICE OF THE PRIV^ COUNCIL.

Dismissal of
appeal for
non-prosecu-
tion after
lodgment of
petition of
appeal.

purpose of completing the printing of the

said record ; or
(c) fails to lodge his petition of appeal within the

periods respectively prescribed by rule 29

(see above, p. 278),

the Registrar of the Privy Council shall call upon the
appellant to explain his default, and, if no explana-
tion is offered, or if the explanation offered is, in the
opinion of the said registrar, insufficient, the said
registrar shall, with all convenient speed, by letter
notify the registrar of the court appealed from that
the appeal has not been effectually prosecuted, and
the appeal shall thereupon stand dismissed for non-
prosecution as from the date of the said letter without
further order, and a copy of the said letter shall be sent
by the Registrar of the Privy Council to all the parties
who have entered an appearance in the appeal.

36. Where an appellant, who has lodged his petition
of appeal, fails thereafter to prosecute his appeal with
due diligence, the Registrar of the Privy Council shall
call upon him to explain his default, and, if no
explanation is offered, or if the explanation offered
is, in the opinion of the said registrar, insufficient,
the said registrar shall issue a summons to the appel-
lant calling upon him to show cause before the Judicial
Committee at a time to be named in the said summons
why the appeal should not be dismissed for non-
prosecution, provided that no such summons shall
be issued by the said registrar before the expira-
tion of one year from the date of the arrival of the
record in England. If the respondent has entered an
appearance in the appeal, the Registrar of the Privy
Council shall send him a copy of the said summons,
and the respondent shall be entitled to be heard before
the Judicial Committee in the matter of the said
summons at the time named and to ask for his costs
and such other relief as he may be advised. The

DISMISSAL FOR NON-PROSECUTION. 295

Judicial Committee may, after considering the matter
of the said summons, recommend to His Majesty the
dismissal of the appeal for non-prosecution, or give
such other directions therein as the justice of the case
may require.

When the appellant neither withdraws his appeal nor
takes any effectual steps to prosecute it, in accordance
with the rules set out above, his appeal may be dismissed
for non-prosecution. The steps which are necessary to
effect its dismissal vary in three different cases :

1. When the appellant takes no steps after the arrival
of the record in England, within four months of its arrival
from the Eastern Colonies mentioned in Schedule B (see
above, p. 274), and within two months in other cases, the
Registrar of the Privy Council shall inform by letter the
registrar of the court appealed from, and the appeal shall
stand dismissed from the date of the letter.

2. When the appellant enters an appearance, but (a) fails
to bespeak a copy of the record within the time prescribed
(see above, p. 274) ; or (b) fails to proceed with the printing
of the record with due diligence ; or (c) fails to lodge his
petition of appeal within the time prescribed (see above,
p. 278), the Registrar of the Privy Council shall call upon
him to explain his default ; and if he gives an inadequate
or no explanation, the Registrar shall notify the registrar
of the court below that the appeal has not been effectually
prosecuted. It shall thereupon be dismissed.

3. When the appellant has lodged his petition of
appeal, but fails to prosecute the appeal with due diligence,
the registrar shall call on him to explain, and in default of
a satisfactory explanation shall, at the expiration of a year
from the arrival of the record in England, summon him to
show cause before the Judicial Committee why the appeal
should not be dismissed for non-prosecution. The Judicial
Committee may thereupon recommend the dismissal of the
appeal or make any other order they think fit.

In the last case the respondent has the opportunity of costs of
appearing before the Judicial Committee and asking for his respondent,
costs and other relief. In the two former cases he does not
have this opportunity, but he is entitled to ask for his costs,

296

THE PRACTICE OF THE PRIVY COUNCIL.

Costs on
dismissal .

Extension
of time.

Death of
appellant.

Limit of time
in cases of
special leave.

etc., in the court from which the appeal is being brought,
and will usually be able to satisfy them out of the amount
deposited by the appellant as security for the costs of the
appeal. The order allowing the appeal should contain the
words that the costs should abide the result of the appeal in
case the appeal should be dismissed for want of prosecution.
But even if these words are omitted, the court can allow the
respondent to satisfy his costs out of the fund deposited as
security. Mihon v. Carter, (1893) A. C. 640.

Where leave to appeal has been granted here and money
for costs deposited, on dismissal for want of prosecution
the respondent's costs will be ordered to be paid out of that
sum and the balance returned to the appellant (a).

An application to extend the time limited by the Order
in Council for taking effectual steps to prosecute cannot be
entertained by the Judicial Committee until the petition of
appeal has been lodged (b). And it would seem that an
application by the respondent by way of motion would not
be in order till the petition is presented, as no matter is
before the Judicial Committee (c).

Upon the death of the appellant the respondent may move
to dismiss the appeal, and terms will be imposed. The
interposition of revivor proceedings will not prevent the
application of the rules of the Order in Council as to
dismissal of the appeal.

Where an authenticated copy of the transcript has been
handed in to the Council Office on a petition for special
leave to appeal, and the order granting special leave directs
such record to be admitted as the official record in the
appeal, the time under the Orders in Council runs from the
date of the order granting special leave, and the appeal
will be dismissed on failure of the appellant to make the
necessary application for printing the transcript within the
prescribed period (e).

(a) Gour Monee Debia v. Khajah Abdool Gunnee (Calcutta, 1864),
10 Moo. I. A. 59 ; and see p. 331.

(6) Lanux v. de la Giroday (Mauritius), O. in C. March 20, 1891 ;
Gungadhur Seal v. Sreemutty Raddamoney Dossee, 9 Moo. 412.

(e) McMillan v. Davies, P. C. Arch., August 27, 1894 ; Hoskyn v.
Drui f- Syndicate, October 3, 1894.

DISMISSAL FOR NON-PROSECUTION. 297

If two appeals be consolidated by order of the court below, Dismissal
the time will be reckoned according to the date of the consolation,
proceedings in the consolidated appeal.

The person complaining of delay should not be guilty of Laches in
laches (#), and generally any objection to the appeal should ° jec
be taken at earliest opportunity (h). The respondent is not
required to wait till his case is printed before applying to
dismiss (/).

The appellant may present a petition to the Judicial Restoration
Committee asking for the restoration of his appeal which of app6*1-
has been dismissed. The Judicial Committee Rules provide
as follows : —

37. An appellant whose appeal has been dismissed Restoring an

for non-prosecution may present a petition to His ^ojssed for

Majesty in Council praying that his appeal may be non-prosecu-
restored.

In one case of unintentional laches, an appeal which
had been dismissed for want of prosecution was restored
after ten years. Rajah Deedar Hossem v. Ranee Zuhovrar
Nisse (1841), 2 Moo. I. A. 441.

Special terms may be ordered by the Committee as to Terms as to
security for costs on allowing the petition. When the security-
security in India still stood and was sufficient, the Judicial
Committee did not require fresh security. Cf. Seti Luckmee
Chund v. Seti Zorawar Mull (1854), 9 Moo. 351.

But when an appeal stood dismissed for want of
prosecution, and upon application the Privy Council restored
it, there being special circumstances and infants being
interested, they imposed the condition that the appellant
should undertake to have it set down for hearing by a
specified time and should deposit GOO?, in the registry.
Ranee Birjolutee v. Pertaub Singh, 13 Moo. 405.

In that case the Judicial Committee were of opinion that

(g) St. Louis v. St. Louis (L. C. 1836), 1 Moo. at 147.

(h) Cf. Pisani v. Att.-Gen. of Gibraltar (Gibraltar, 1874), L. R. 5
P. C. 517, where the objection was that the right of appeal had been
waived by agreement of the parties.

(») Jackson v. Prothero (Trinidad, 1842), 3 Moo. at p. 492.

298

THE PRACTICE OF THE PRIVY COUNCIL.

Dismissal at
instance of
respondent.

Counter-
petition to
rescind leave
to appeal.

Dismissal
where appeal
out of time.

by the dismissal the security given below becomes vacated,
and therefore fresh security has to be given. In another
case their lordships ordered that fresh security should be
given in England so far as there should be a deficiency of
security in India, by reason of the security there being
altered wholly or in part.

Besides the cases where an appeal may be dismissed
automatically for non-prosecution, it is open to the
respondent to present a petition for the dismissal of an
appeal either on the ground that an appeal does not lie in
the case, or that the appellant has not taken effective steps
to prosecute it.

Where leave to appeal has been given by the Privy
Council upon an ex parte petition, a eounter-petition that
the order giving leave may be rescinded and the appeal
dismissed may be presented at any time before the
hearing (&), and a motion to that effect may thereupon be
made. It may proceed upon the ground that the leave to
appeal was given in a matter not legally appealable, or
that it was unduly obtained, or that the conditions imposed
by the order granting leave have not been complied with (/),
or on the ground of want of jurisdiction in the court
below (m).

No leave need be obtained to present such counter-
petition (M).

It is usually supported by affidavit or such other evidence
as may be satisfactory to the court (o).

"When a final decree was made against the appellant in
the colonial court, and a motion to set it aside was
dismissed in the following year, and again after an

(k) Cuvillier v. Aylwin (Quebec, 1832), 2 Knapp, 72 ; Ex parte
Robertson (N. S. W. 1857), 11 Moo. 288, at 290 ; In re Ames (Jersey,
1841), 3 Moo. 411 ; Bulkeley v. Scutz (Constantinople, 1870), L. R.
3 P. C. 196.

(I) Ibid. ; and McKellar v. Wallace (Calcutta, 1853), 5 Moo. I. A.
372.

(m) Macfarlane v. Leclaire (Quebec, 1862), 15 Moo. 181.

(n) Sibnarain Ghose v. Hullodhur Doss (Calcutta, 1854), 6 Moo.
I. A. 207 ; 9 Moo. 354.

(o) Quebec Fire Insurance Co. v. Anderson (Low. Can. 1861), 13
Moo. 477.

DISMISSAL FOR NON-PROSECUTIOX.

299

interval of five years, and an application to restrain
execution was refused a year later, it was held on the
respondent's petition that the appeal from this last order
must be dismissed without hearing. It was merely a
repetition of the order dismissing the motion to set
aside the judgment from which an appeal was barred.
Special leave to appeal from the order dismissing these
motions was likewise refused, having regard to the delay
and the impossibility of obtaining any relief without
reversing the original judgment to which no objection
could be maintained. Grieve v. Taslter, L. R., (^1900)
A. C. 132.

If it appear at any stage of the cause that the leave Dismissal
to appeal was obtained by misrepresentation, even unin-
tentional, the Privy Council (p) will at once dismiss misrepresen-
the appeal with costs, without hearing it upon the tation
merits (q).

In ordinary circumstances an Order in Council granting
leave to appeal, obtained upon an ex parte petition which
omitted to state the true facts, will be discharged with
costs ; but if there has been laches in applying to discharge
the order on the part of the respondent, no costs will be
given (r).

Upon the hearing of such a counter-petition the dis-
cussion will be confined to the competency of the appeal,
or the immediate question at issue, whatever it may be,
upon the counter-petition. The merits of the case itself
will not be regarded.

Where a petitioner has presented a petition in which he Misapprehen-
has in fact, although inadvertently, misled their lordships
by not stating the true nature of the question in the court

(p) Wilson v. Calknder, 9 Moo. 100, at 102 ; Sibnarain Ghose v.
Hullodhur Doss, 9 Moo. at 355 ; Cremidi v. Parker (Admiralty, 1856),
11 Moo. at 85 ; and Bulkeley v. Scutz (Constantinople, 1870), 6 Moo.
(N. S.) at 483.

(q) Ham Sabuk Bose v. Monmohini Dossee. (Calcutta, 1874), L. R.
2 Ind. App. at 81 ; approved in Mu-s-soorie Batik v. Ray nor (Allahabad,
1882), 7 App. Cas. 321 ; L. R. 9 I. A. 70, where the Judicial Com-
mittee, as the petition stated correctly two valid grounds for granting
leave, heard and allowed the appeal, but without c<

(r) Mohun Lall Sookul v. Bebee Doss (Calcutta, 1861), 8 Moo. I. A.

300

THE PRACTICE OF THE PRIVY COUNCIL.

Respondent's
duty as to
incompetent

Right of
next friend
after comint
of age of
infant.

below, he should come forward at the earliest moment to
say that he did not know, and that he could not by ordinary
inquiry have known, what the grounds of the judgment
were (s).

Where an appeal is informal and not competent, and
ought not to be discussed on the merits, it is the duty of the
respondent to apply to quash the appeal on that ground,
whether allowed specially by the Privy Council or granted
as of course by the court below (t). The preliminary
objection that the amount in dispute is below the appeal-
able amount comes too late at the hearing of the
appeal (u).

Where a court has granted leave to appeal, without
jurisdiction to do so, the Privy Council will on petition
rescind the order (x). If an appeal is brought in violation
of an undertaking duly given in the court below, the Privy
Council will dismiss it unheard (y).

Where an infant sole appellant, on coming of age, has
authorised his agent to withdraw the appeal, an application
by the respondent to have the appeal dismissed accordingly
cannot be resisted by the next friend on the ground of any
interest he may have in the matter in dispute, or the costs
of the litigation (z).

Withdrawal
of appeal
before
petition of
appeal has
been lodged.

The Withdrawal of an Appeal.

If at any period during the preparation of the appeal
the appellant desires to withdraw it from the consideration
of the Privy Council, the rules prescribe the steps which he

(s) Ex parte Baudains (Jersey, 1888), 13 App. Cas. 834.

(t) Pisani v. Att.-Gen. for Gibraltar, L. R. 5 P. C. 525 ; Sauvageau
v. Gauthier, L. R. 5 P. C. 494. See, too, Canadian Central Railway
Co. v. McLaren (1884), P. C. Arch. March,

(u) Nilmadub Doss v. Bishumbur Doss, 12 Suth. W. R. P. C. pp. 29,
31.

(a:) Macfarlane v. Leclaire (Lower Canada, 1862), 15 Moo. at 185 ;
and an opportunity to apply for special leave will not be granted
unless the circumstances are such as to render it desirable. Allan v
Pratt (1888), 13 App. Cas. at p. 782.

(y) Moonshee Ameer Ali v. Mahumed Singh, 14 Moo. I. A. 203.

(z) Eanee Bistoopria Putmadaye v. Numd Dhul, 13 Moo. I. A.
602.

DISMISSAL FOR NON-PROSECUTION. 301

must take to that end. He should act upon them as soon
as possible, in order that there may not be an application
for dismissal for non-prosecution.

These steps differ according as he has or has not lodged
his petition of appeal. In the latter case the appeal is not
regarded as being before His Majesty's Council, and he
need only give notice in Avriting to the Registrar of the
Privy Council of his desire. The rule runs :

32. Where an appellant, who has not lodged his Withdrawal
petition of appeal, desires to withdraw his appeal, tefor^peti-
he shall give notice in writing to that effect to the tionof
Registrar of the Privy Council, and the said Registrar been^odged.
shall, with all convenient speed after the receipt of
such notice, by letter notify the registrar of the
court appealed from that the appeal has been with-
drawn, and the said appeal shall thereupon stand
dismissed as from the date of the said letter without
further order.

If the appellant comes to the determination to withdraw withdrawal
the appeal prior to the despatch of the decree to England, in colony,
not even this formality is required, because the appeal is not
before the Privy Council at all ; and in such circumstances
the Colonial Rules of Appeal provide that he may apply
to the colonial court for a certificate to the effect that the
appeal has been withdrawn.

(19) Where an appellant, having obtained final leave to
appeal, desires, prior to the despatch of the record to England,
to withdraw his appeal, the court may, upon an application
in that behalf made by the appellant, grant him a certificate
to the effect that the appeal has been withdrawn, and the
appeal shall thereupon be deemed, as from the date of such
certificate, to stand dismissed without express Order of His
Majesty in Council, and the costs of the appeal and the
security entered into by the appellant shall be dealt with in
such manner as the court may think fit to direct. (See
above, Chapter II., pp. 29, 30.)

But if the appellant has lodged his petition of appeal, Withdrawal

and then desires to withdraw his appeal, the procedure is after lodsins

petition.

302

THE PRACTICE OF THE PRIVY COUNCIL.

Withdrawal
of appeal
after petition
of appeal
has been
lodged.

Procedure
where peti-
tion is con-
sented to or
is formal.

more elaborate. The appeal is in such case regarded as being
before His Majesty in Council ; and can only be removed by
a petition to that effect to His Majesty in Council.
Cf. Gain Molmn Chebrubetiv. Tar a Sunedri Deli, I. L. R. 17
Calc. 693.

33. Where an appellant, who has lodged his petition
of appeal, desires to withdraw his appeal, he shall
present a petition to that effect to His Majesty in
Council. On the hearing of any such petition a
respondent who has entered an appearance in the
appeal shall, subject to any agreement between him
and the appellant to the contrary, be entitled to
apply to the Judicial Committee for his costs, but
where the respondent has not entered an appearance,
or, having entered an appearance, consents in writing
to the prayer of the petition, the petition may, if
the Judicial Committee think fit, be disposed of in
the same way mutatis mutandis as a consent petition
under the provisions of rule 56 hereinafter contained.
(See supra, Chapter VIII., p. 260. And for form of
petition, Appendix D, p. 474.)

The provisions of rule 56 are to the effect that :

Where the prayer of a petition is consented to in
writing by the opposite party, or where a petition
is of a formal and non-contentious character, the
Judicial Committee may, if they think fit, make
their report to His Majesty on such petition, or
make their order thereon, as the case may be, without
requiring the attendance of the parties in the Council
Chamber, and the Kegistrar of the Privy Council shall
not in any such case issue the summons provided for
by the last preceding rule, but shall with all con-
venient speed after the Committee have made their
report or order notify the parties that the report or
order has been made and of the date and nature of
such report or order.

DISMISSAL FOR NON-PROSECUTIOX. 303

The parties need not be summoned to the hearing of the
petition for the withdrawal of the appeal, and the Privy
Council may make their formal order on the petition in their
absence.

Where, pending an appeal, one of the appellants entered Withdrawal
into an agreement with the respondent to compromise and ^7 co.m"
withdraw his appeal, on a petition to Her Majesty in Council,
his name was erased or withdrawn from the proceedings on
appeal in England («).

When a case has been compromised after leave to appeal Petition to
has been obtained from the Judicial Committee, and the usual recognizance
recognizance has been given, the course is to present a petition
addressed to the King in Council, praying leave to with-
draw the appeal or that the order granting leave to appeal
be rescinded and the recognizance discharged (J).

The Judicial Committee will reserve liberty to the parties Enforcement
to apply to the court below to take proceedings in pursuance compromise,
of the compromise (c). If the parties consent, and no
difficulties of detail exist, the Privy Council will issue any
orders which may be necessary to carry out the terms of the
compromise. Such orders may be necessary where there is
anything to be done in Great Britain. Thus, in a case in
which the local court had refused to interfere, where the
fund in dispute in the appeal (and which under the com-
promise was to belong to the appellant) was standing in the
name of the Accountant-General of the Court of Chancery
in the West India Compensation Account of the Court of
Chancery, " subject to suits," an order was made on the
petition of the appellant that the Accountant-General of the
Court of Chancery should transfer the fund to him in full
settlement of the claim made by him, and that all further
proceedings in the original actions might be stayed and the
appeal dismissed (d).

Where an appeal is abandoned in an ecclesiastical case by Abandonment
a special proxy under the appellant's hand and seal, and a of f pPeal in.

(a) Sheikh Imdad Ali and Others v. Mussumat Kootby Begum (Ben-
gal, 1842), 3 Moo. I. A. 1.

(6) Reed v. Sreemutty Gourmoney Dabee (Calc. 1857), 6 Moo I A
490 ; cf. Chastey v. Ackland (H. L. E. 1897), A. C. 155.

(d) M'Turk v. Douglas (British Guiana, 1849), 6 Moo. 500.

304 THE PRACTICE OF THE PRIVY COUNCIL.

declaration by the proctor that the appellant proceeds no
further in the appeal, the respondent may move to dismiss
the petition, and to confirm the sentence appealed from, and
to remit the cause to the lower court, and to condemn the
appellant in the costs of appeal (e).

(e) Brownlow v. Garson (H. C. Adm. 1843), 4 Moo. 272 ; West v.
Johnson (Arches Ct. 1856), 10 Moo. 421.

CHAPTER XL

Of the Abatement and the Revivor of an Appeal.

Ax appeal is said to abate upon the transmission of the Abatement,
interest in the appeal of any of the parties, which is usually
caused by death. An abatement does not put an end to the
suit. It is a present suspension of the proceedings which
may be revived. To determine whether an abatement has
taken place, it is necessary to look to the circumstances
of each case and the rules of law in the country from which
the appeal is brought. An appeal is said to revive when the
proper parties are substituted.

The Privy Council, like every other tribunal, must have Proper parties
proper parties before it, or its decrees will not be binding. necessai7-
Where, therefore, it becomes known before the lodging of
the petition of appeal at the Council Office that either a party
appellant or respondent has died since the date of the order
finally giving leave to appeal to the Sovereign in Council, an
Order of Revivor must be obtained before the petition of
appeal can be lodged. Under the new Judicial Committee
Rules it is for the court below to determine who are the
right parties.

The court does not readily attend to any technical objec-
tions as to the absence of parties (a), and if no objection has
been taken in the court below it cannot be taken on appeal.
But wherever circumstances occur which would cause an
abatement of the suit in the court below, the appeal is abated
and must be revived. For this purpose an Order of Revivor
is obtained by or against the person entitled to stand in the
shoes of the party whose interest has abated.

On the death of a sole appellant the respondent may Death of sole
obtain an order, where the next of kin are entitled, that aPPellant-
they should revive the appeal (&). Where there are three
"legal representatives" of deceased appellant, and only
one of them is willing to be made appellant, the others

(a) Marchioness of Bute v. Mason (N. S. W. 1849), 1 Moo. 1.
(6) Macqueen, H. of L. p. 243 ; House v. Stamp (1728), ibid.

P.C. 20

806

THE PRACTICE OF THE PRIVY COUNCIL.

When to ask
for fresh
security.

Inquiry in
court below.

should be brought on the record as respondents (e). The
respondent may require the surviving appellants, where one
of several dies, to revive the appeal (d).

An appeal granted to the Dean of Jersey, judge of the
Ecclesiastical Court of the island, against a sentence in the
nature of a writ of prohibition, became abated by his death.
Upon his successor presenting a petition to Her Majesty in
Council, praying that Her Majesty would be pleased to order
the appeal so granted to be revived, it was so ordered, and
that he might stand and be the appellant in such appeal as
Dean of the said Island of Jersey (e).

In a Canadian case pending the appeal to His Majesty
in Council, and subsequent to its allowance by the
Court of Appeals of Upper Canada, the appellant died,
having by his will appointed certain persons his executors,
by whom an Order of Revivor was obtained from His
Majesty in Council, and the respondents appeared to the
Order of Revivor. Subsequently the respondents, having
examined the security bond given by the deceased appellant,
discovered that it was not binding on his executors, and
moved that the executors should give security or the appeal
stand dismissed. It was held that they, having appeared to
the Order of Revivor, were then too late, and that they
should have moved to dismiss the appeal on the death
of the appellant, when terms would have been imposed (/).

It has, however, for long been the practice of the Judicial
Committee to act on the finding of the court below. In
an Indian case they approved of the statement in Mr. Mac-
pherson's book (p. 241) : " In such cases the proper
evidence must be given of the representative character of the
persons by or against whom the revivor is sought. The
title is more generally established upon petition to the
court below, which thereupon makes any enquiries it may
deem necessary, and orders the petition and proofs to be
transmitted to England for such order as the Judicial
Committee may think fit to make" (g).

(d) Blake v. Bogle, Macqueen, p. 244.

(e) Dean of Jersey v. Rector of (1840), 3 Moo. at p. 231.

(/) Powell v, Washburn (U. C. 1838), 2 Moo. 205.

(g) Shaikh Haidar Ali v. Tasadduk Rasul, P. C. Arch., 1888,
July 21st.

ABATEMENT AND REVIVOR. 307

Where the promoter of an ecclesiastical cause has died The rule in
pending an appeal to the Privy Council, the Board allows a ^Chun*
proper promoter to be substituted in his place. In some Discipline
cases the executor of the original promoter appears to have Act>
been substituted as a new promoter, on the ground, probably,
of his having an interest in the costs which the testator pro-
moter had obtained by the judgment appealed from. In
other cases the new promoter has been the successor in
office of the first promoter. But the power of the court to
appoint a new promoter is not limited to the two cases of a
deceased promoter, whose representative has a pecuniary
interest, and of a deceased promoter who was clothed with
an official character (•/).

When a sole respondent dies pending an appeal, the Death of sole
appellant ought to apply to the Judicial Committee for an Respondent.
Order of Revivor to revive the appeal against the legal Orderof
personal representatives (k).

Where the heirs of the respondent renounced succession, Revivor on
and a curator was appointed by court, the appeal was
revived against the curator on his petition (/). After
respondent's death the appeal was revived, on the appellant's
application, by making the heir the respondent (m). Pend-
ing an appeal the respondent died intestate leaving children,
who, by reason of litigation respecting their father's right of
succession, objected to be made respondents. The Judicial
Committee ordered the petition to revive to stand over, with
liberty to apply to the Royal Court of Jersey to appoint a
proper person to represent the estate. That court appointed
the Viscount of the Island as official representative of the
estate, and the appeal was revived in his name (n).

Infants, it was said in an old case, are not to be prejudiced Revivor by
by the negligence of their guardians, and therefore, if His infant-
Majesty were to dismiss an appeal on account of the neglect
of the guardians to bring it to a decision, when the infants

(*') Elphinstone v. Purchas (Arches Ct. 1870), 7 Moo. (N. S.) at
pp. 33, 34 ; cf. Liddett v. Beal (1860), 14 Moo. at p. 12.

(k) Gobindchunder Sein v. Ryan (Cal. 1861), 15 Moo. at p. 247 ; and
Carr v. Henton (1787), Macqueen, p. 244 ; Cameron v. Kyte (Berbice,
1835), 3 Knapp, 332 ; see Wise v. Kishencoomar Bom (Calcutta,
1847), 4 Moo. I. A. 201.

(1) Ermatinger v. Gugy (L. C. 1844), 5 Moo. 1.

(m) Ahier v. Westaway (Jersey, 1855), 9 Moo. 395.

(n) La Cloche v. La Cloche (Jersey, 1872), L. R. 4 P. C. 325.

20-2

808

THE PRACTICE OF THE PRIVY COUNCIL.

Abatement
upon mar-
riage.

Insolvency of
appellant.

Action
brought by
committee
of lunatic.

Order of
revivor by
co-heiress
and adminis-
tratrix.

attain their full ages they would have a right to revive it.
Orphan Board v. Van Reenan, 1 Knapp, 94.

Where the interest of a female appellant, or of a female
respondent, plaintiff in the court below, and possibly also of
any female respondent whose interest in the appeal, by
virtue of the marriage, becomes vested by the lexforiiuthQ
husband, the appeal appears to abate (o).

An appellant was adjudicated an insolvent under the
Indian Insolvency Act, 11 Viet. (Imp.) c. 21, his estate and
effects became vested in the official assignee of the Insolvent
Court in India, and the appeal thereby abated. The court
allowed it to stand over for six months, that notice might
be served by the respondent on the official assignee, and that
the official assignee might take such proceedings as he
might be advised, in default of which the appeal was dis-
missed (p). In Bute v. Mason (q) an insolvent was allowed
to appeal as trustee.

A suit was instituted in a court of the East India Com-
pany by the committee of a lunatic, claiming from the
Government, on behalf of the lunatic, the possession of a
certain jaghire, or land grant, in perpetuity, with mesne
profits. The courts decided against the claim, and the
plaintiff appealed to the Queen in Council. Before any
steps were taken in the appeal or the petition of appeal was
lodged, the lunatic died, and special administration of his
estate and effects was granted to his widow. The committee
also died. A petition was presented by the two sisters and
the administratrix to revive, in which it was submitted that
the two sisters were entitled to the jaghire, as co-heiresses of
the deceased, and the administratrix was entitled to the
mesne profits ; and an order was made that the appeal
should stand revived, and that the petitioners should be
allowed to come in and prosecute the appeal in the place of
the committee (r).

(o) Macqueen, p. 247.

(p) Gooroochurn Sein v. fiadanauth Sein and Others (Calcutta, 1857),
11 Moo. at p. 78 ; 7 Moo. I. A. 1. Cf. Re Hamilton, 14 N. S. W. Rep.
96. Cf . as to abatement by reason of marriage, death or bankruptcy,
under the Rules of the Supreme Court in England, Ord. XVII. r. 1 ;
and Williams on Bankruptcy, as to effect of bankruptcy.

(q) (N. S. W. 1849), 7 Moo. 1.

(r) Troup and Others v. East India Company (Agra, 1857), 7 Moo.
I. A. at p. 119.

ABATEMENT AND REVIVOR. 309

It has been pointed out (see above, Chapter II., pp. 31 ff.) Amendment
that by the Colonial Appeal Rules, now applied in most ^1^°rd in
colonies, when the change of parties occurs between the
time of granting final leave to appeal in the colony and
the despatch of the record to England, the colonial court
may, on application made by any person interested, grant a
certificate showing who should be substituted and entered
on the record, and no express Order of the Privy Council
is required to effect the change in the record. See rule 21
of the Colonial Appeal Rules.

"Where at any time between the order granting final leave
to appeal and the despatch of the record to England the
record becomes defective by reason of the death, or change
of status, of a party to the appeal, the court may, notwith-
standing the order granting final leave to appeal, on an
application in that behalf made by any person interested,
grant a certificate showing who, in the opinion of the court,
is the proper person to be substituted or entered on the
record in place of, or in addition to, the party who has died
or undergone a change of status, and the name of such per-
son shall thereupon be deemed to be so substituted or
entered on the record as aforesaid without express Order of
His Majesty in Council.

So soon, however, as the Privy Council is seised of the Petition of

appeal by the arrival of the record in England, the Order of revivor when
~r% • i • • i ncccss<iry»

Revivor can only be made on a petition to the Sovereign

in Council. It would be very inconvenient that the Board
should try the facts necessary for the alteration of the parties,
and it regularly relies on the finding of the court below.

The Judicial Committee Rules now provide that there Procedure,
shall be a certificate from the court appealed from, showing
who is the proper person to be entered on the record.

51. A petition for an Order of Revivor or substitu- Petition for
tion shall be accompanied by a certificate or duly ™*™f or
authenticated statement from the court appealed from substitution.
showing who, in the opinion of the said court, is the
proper person to be substituted, or entered, on the
record in place of, or in addition to, a party who has
died or undergone a change of status.

By the Colonial Rules of Appeal applied by the various

310

THE PRACTICE OF THE PRIVY COUNCIL.

Costs in
revived
appeal.

Recognizance
for costs.

Judgment in
an abated
appeal.

Orders in Council the colonial court shall cause such a certifi-
cate to be transmitted to the Registrar of the Privy Council
on the application of anybody interested. When it has
inquired into the matter, the petition to revive, and the
evidence thereon together with the certificate, should be
forwarded by the officer of the colonial court to the Council
Office in the form of a supplemental record. (For form of
petition see pp. 257 ff., and Appendix D, p. 473.)

It may be, however, that satisfactory evidence may be
placed before the Judicial Committee as to the proper
person to be placed upon the record without any certificate
being first obtained from the court below. Such a case
occurred in Ledgard v. Bull (s). On the death of a party
to the appeal in India, his original will was produced
showing his representatives, and an Order of Revivor was
made.

A legal personal representative obtaining an order to
revive adopts the position of the deceased party, and
becomes entitled to or liable to submit to an order to pay
costs personally in like manner as the deceased party would
have been (/).

Security may be required at any time, and on the
substitution of a new party fresh security may be required.

When pending the hearing of the appeal the respondent
died and the Judicial Committee heard the appeal in
ignorance of the death, and the appellant was ordered to
pay costs, the court below refused to ignore the decree of
the Sovereign in Council (u).

(s) P. C. Arch., July 9, 1885 ; cf. ibid. (1886), L. R. 13 I. A. 134.
(t) Boynton v. Boynton (1879), 4 A. C. at p. 736.
(u) Flood v. Egan (1899), 20 N. S. W. Rep. 337.

CHAPTER XII.

THE HEARING OF THE APPEAL.

THE hearing of the appeal takes place at the bar of the Privy Coun-
Privy Council in Downing Street before the Judicial ^s^rth?"
Committee of the Privy Council. The following Privy Judicial
Councillors are members of the Judicial Committee : Committee.
The Lord President for the time being of His Majesty's
Privy Council and such of the members of His Majesty's
Privy Council as shall from time to time hold the office
of Lord Keeper or First Lord Commissioner of the Great
Seal of Great Britain, and also all persons, members
of His Majesty's Privy Council, who shall have been Lord
President thereof or shall have held any of the other offices
hereinbefore mentioned, and any two persons being Privy
Councillors appointed by the Sovereign under sign manual (a);
the present or past Lords Justices of Appeal who are Privy
Councillors (b) ; such members of His Majesty's Privy Lords of
Council as are for the time being holding or have o
held any of the offices in the Appellate Jurisdiction Act,
1876 (c), and the Appellate Jurisdiction Act, 1887 (cl),
described as high judicial offices ; the two Judges of
India or other possessions beyond the seas who may be
appointed under 3 & 4 Will. IV. c. 41, s. 30, members
of the Judicial Committee (e) ; the Chief Jastices of the
Colonies mentioned in 58 & 59 Viet. c. 44, as amended
by 8 Edw. VII. c. 51, not exceeding five, who shall be
named by His Majesty in Council (/) ; and the judges
empowered to sit by the Appellate Jurisdiction Act, 1908
(8 Edw. VII. c. 51) (g).

(a) 3 & 4 Will. IV. c. 41, s. 1.
(6) 44 & 45 Viet. c. 3.

(d) 50 & 51 Viet. c. 70, ss. 3, 5.

(e) 50 & 51 Viet. c. 70, s. 4. Such judges are members of the
Judicial Committee for all purposes.

) Supra, pp. 10, 17.
Supra, p. 17.

312

THE PRACTICE OF THE PRIVY COUNCIL.

Nautical

Notice to
parties of
date of com-
mencement
of sittings ;
entering
appeals for
hearing.

Notice to
parties of
day fixed
for hearing
appeal.

Hearing in
absence of
one party.

In Admiralty appeals the JudiciarCommittee may, if they
think fit, require the attendance of two nautical assessors,
and in ecclesiastical causes the archbishops and certain of
the bishops may be called on to sit as assessors. Appellate
Jurisdiction Act, 1876, s. 14.

Hearing.

70. As soon as the Judicial Committee have
appointed a day for the commencement of the sittings
for the hearing of appeals, the Kegistrar of the Privy
Council shall, as far as in him lies, make known the
day so appointed to the agents of all parties concerned,
and shall name a day on or before which appeals must
be set down if they are to be entered in the list of
business for such sittings. All appeals set down on
or before the day named shall, subject to any direc-
tions from the Committee or to any agreement between
the parties to the contrary, be entered in such list of
business and shall, subject to any direction from the
Committee to the contrary, be heard in the order in
which they are set down.

71. The Registrar of the Privy Council shall,
subject to the provisions of rule 42, notify the parties
to each appeal by summons, at the earliest possible
date, of the day appointed by the Judicial Committee
for the hearing of the appeal, and the parties shall be
in readiness to be heard on the day so appointed.

Rule 42 provides that a respondent who has not entered
an appearance shall not be entitled to receive any notice
from the registrar. He may, however, enter an appearance
and lodge a case at any time down to the hearing of the
appeal.

Ex parte Hearings. — No matter will be taken ex parte
without giving the other party an opportunity of appear-
ing (h). In questions regarding office, and personal conduct

(h) In re Butts (British Guiana, 1842), 4 Moo. at p. 95 ; and see
supra, p. 290, and cf. Willis v. Sir G. Gipps (N. S. W. 1846), 5 Moo. at
p. 384. Respondents have been allowed to enter appearance after
ex parte hearing but before judgment.

THE HEARING OF THE APPEAL. 313

and personal rights (/), the Privy Council has often been

compelled, by the non-attendance of one of the parties, to

decide upon consideration only of the arguments urged by

the parry who does attend. This also happens occasionally

in ordinary litigation. When the Judicial Committee is Parties to

satisfied that all parties have had notice of the proceedings, ^ftyPof°r"

and an opportunity of attending them, it does not hesitate attending.

to entertain the case and to pronounce judgment (k), and

such judgment is final ; and like all other judgments of the

court, it cannot be reviewed, except for the correction of

mistakes in drawing up, after an Order in Council has been

passed for confirming the report (/).

A party will not be heard when the appeal comes on for Necessity
hearing unless he has lodged a printed case (m). case^1

Two counsel on each side, and no more, are heard Number of
(rule 72), and it is the uniform practice to allow the counsel heard,
appellant's counsel to begin, and also to reply, whatever
may be the practice of the court appealed from (n).

If there are several parties in one appeal, who are in
different interests, the practice is to hear them by separate
counsel. But if they are in the same interest, the court
makes them arrange so as to be heard by the same counsel (0).

There is a right of audience before the Privy Council to
members of the English, Scotch and Irish Bar and to those
Indian and Colonial practitioners whose position corresponds
to that of barristers in this country. The General Council
of the Bar, in reply to a question recently submitted to them,
stated that there is no rule of the profession which
prevents an English King's Counsel from appearing alone

(t) E.g., cases as to judges holding office under 22 Geo. III. c. 75 ;
and as to civil servants and barristers and pleaders aggrieved by sus-
pension, supra, p. 255. In the order giving leave, liberty is given to the
party as to whose order complaint is made to put in an answer and

1886 ; L. R. 14 I. A. 154 ; Ex parte Louis de Souza (British Guiana),
December 1, 1888 ; and McLeod v. St. Aubyn (St. Vincent), (1899)
A. C.

(k) StracJian v. Dougatt (Jamaica, 1851), 7 Moo. 365, at p. 371.

(I) Ex parte Kisto Nauth Boy (Calc. 1869), L. R. 2 P. C. 274.

(m) Bengal Government v. Mu-ssumat Shurrufiutoonnissa (Calc.
1860), 8 Moo. I. A. 225.

(n) Henfrey v. Henfrey, 4 Moo. p. 33.

(o) In re Downie, etc., 3 Moo. 419.

314

THE PKACTICE OF THE PRIVY COUNCIL.

before the Privy Council on the hearing of a petition ; bub
that upon the hearing of an appeal he ought not to appear
without a junior.

Not affected by Consolidation. — Where an order of consoli-
dation is made, the right is reserved to each party to open
his own appeal Qp). Where two appeals are consolidated,
each appellant has a right to be represented by two counsel,
and the court cannot interfere with this, though the facts
and the arguments used might be the same in both cases.
Intervention, Interveners heard. — Where A. claimed from B. the resti-
tution of an estate which had been illegally sold by the
Government to B., the East India Company, which was
liable to give compensation to B. if A/s claim should be
affirmed, intervened in the proceedings before the Privy
Council (though it had not intervened below), and put in a
case, and having been heard by counsel was ordered to pay
compensation (q).

Intervening when Appeal part heard. — It depends on the
particular circumstances whether, in a case where the appli-
cation to be allowed to intervene in the appeal made is
after the appeal has been part heard, the Committee will
allow the intervener to come in and join in the appeal (r).

The Costs of intervening. — The costs of intervening in any
manner in any cause of appeal shall be paid by such party
or parties, person or persons, as the Judicial Committee shall
order (s).

The reasons stated in the cases should contain all the
objections to the decree. An appellant will be precluded
from arguing points not so taken (/). The argument should
be consonant, where special leave has been obtained, with

The argu-
ment at the
hearing.

(p) Australian Gold Recovery . Co. v. Lake View Consols, P. C.
March 24, 1900.

(q) Maharajah Ishuree Persaud Narain Singh and Another v. Lai
Chutterput Singh (Bengal, 1842), 3 Moo. I. A. 100 ; cf. Hocquard v. The
Queen (V.-A. St. Helena, 1857), 11 Moo. at p. 160.

(r) La Banque D'Hochelaga v. Murray (P. C. Arch. March 25, 1890),
15 A. C. at p. 419 ; but see Sheikh Sultan Sani v. Ajmodin, P. C. Arch.
November 19, 1892, and Mudder Mohun Dos and Others v. Mothura
Pershad, 0. in C. June 29, 1896.

(s) 6 & 7 Viet. c. 38, s. 12. The costs are to be taxed as directed in
that section. See App. A., p. 434.

(t) Sheo Singh Rai v. Mussumat Dakho (Allahabad, 1878), L. R.
5 I. A. 87.

THE HEARING OF THE APPEAL. 315

the grounds set forth in the application for special leave(w).
So, where appellant obtains leave on the ground that he
desires to raise a particular question of great and general
importance, he cannot be heard to argue that the question
turns on a question of fact (x).

Case re-argued. — In cases of much difficulty (y), where Case
some legal point of importance has been evolved in the re-arSuedt
course of the argument, their lordships permit, and indeed
occasionally direct, the case to be re-argued before them by
one counsel on each side, and generally with reference to
specific points of law ; and when the members of the Com-
mittee who have heard the case disagree or entertain grave
doubts, it is usual to call for such further argument, and to
obtain the attendance of additional members of the Com-
mittee (z). The argument may sometimes be necessary by
reason of the death of one of the judges forming the quorum,
pending the hearing of the appeal (a).

Costs where re-argued. — Though only one counsel may be
heard, costs are allowed to two (#).

The Privy Council is a court of the last resort, and it The Privy
ought not to be called upon, without the most urgent no^court of
necessity, to perform the functions of the court of first first instance,
instance, as it would thus be deprived of the benefit of the

(u) IbiJ.

(x) Corporation of St. John's v. The Central Vermont Railway Co.
(S. C. Can. 1889), 14 A. C. 590.

(y) See Frankland v. M'Gusty (Demerara, 1830), 1 Knapp, 274 ;
Long v. Commissioners for Claims on France (1832), 2 Knapp, at
p. 59 ; Hodges v. Sims (Admiralty, 1835), 3 Knapp, 94 ; Heathorn v.
Darling (Admiralty, 1836), 1 Moo. at 10 ; Sherwood v. Ray (Arches
Ct. Cant. 1837), 1 Moo. at p. 392 ; Gahan v. Lafitte (St. Lucia, 1842),
3 Moo. at p. 397 ; Kielley v. Carson (Newfoundland, 1842), 4 Moo. at
p. 82 ; Allen v. Kemble (British Guiana, 1848), 6 Moo. at p. 316 ;
I [armer v. Bell (Admiralty, 1851), 7 Moo. at p. 278 ; Ruckmaboye v.
Lulloobhoy Mottichund (Bombay, 1852), 8 Moo. at p. 11.

(=) Sorensen v. The Queen (The Baltica) (Admiralty, 1857), 11 Moo.
at p. 143. See also Oriental Bk. v. Wright, 5 A. C. 842 ; Gipps v.
Messer, (1891) A. C. 248 ; Tennant v. Union Bank of Canada, (1894)
A. C. 31 ; Corp. of Canterbury v. Wyburn, (1895) A. C. 89 ; Gnana-
tiamba'* Case, L. R. 27 I. A. 69.

(a) Tar rick Chunder Buttacharjya v. Bykuntnath Sunnyal, L. R.
8 I. A. 65 ; Fakk v. Williams, (1900) A. C. 176 ; Wentworth v. Went-
worth, ibid. 163 ; Falkingham v. Victorian Railway Commr., April 6,
1900, P. C. Arch.

(b) Thakur Rohan Sing v. Thakur Surat Sing (Oudh, 1884), L. R.
12 I. A. 52; Bening field v. Baxter (Natal, December 31, 1886);
Secret/in/ of State for India v. Srimati Fahamidunnissa Begum (Bengal,
1SSDJ, L. R. 171. A. 40.

316 THE PRACTICE OF THE PRIVY COUNCIL.

discussion and judgment in the court below, and be obliged
to pronounce a judgment from which there is no appeal (c).
Thus where an appeal was taken upon the question of adding
parties to the case and the Judicial Committee reviewed the
finding of the lower court, it refused to hear the case upon
its merits. Cf. Kent v. La Communaute de Swurs, (1903)
A. C. 220.

The practice of the Board in this regard was clearly
stated in the recent case of Ponnammav. Arumogam, (1905)
A. C. p. 390, where it was said (per Lord Davey) :
" Without limiting the extent of His Majesty's prerogative,
their lordships can safely say that it is not the practice of
the Board to entertain any other appeal than one strictly
so called in which the question is whether the order of the
court from which the appeal was brought was right on the
materials which that court had before it." The Board
may, however, receive fresh evidence or remit the case for
further hearing where it is satisfied that material points
have not been considered by the lower court. As it was
said in the same judgment :

" The Board may, however, think that the court below had
not sufficient materials for its judgment, or improperly
omitted to receive or require further evidence or to try some
issue, in which case it may remit the case for further hearing."

In accordance with this principle the Judicial Committee
is very unwilling to entertain any point which has not been
duly raised and considered in the court appealed from (tT).
If, indeed, any very important point of substantial law,
which ought to govern the case (such as an established rule
of inheritance, or an express enactment), has been overlooked
in the court below, the Judicial Committee will not refuse to
entertain it (e), but it will not entertain an objection of mere

(c) Head v. Sanders (Arches Ct. Cant. 1842), 4 Moo. at p. 197 ;
Ee Gould (Jersey, 1838), 2 Moo. at 192 ; Kent v. La CommunauU de
Sceurs, etc., (1903) A. C. 220.

(d) Mohummud Zahoor All Khan v. Mussumat TJtaJcooranee Rutla
Koer (Agra, 1867), 11 Moo. I. A. 467 ; Gray v. Manitoba N. W. Railway
Co., (1897) A. C. 254 ; Archambault v. Archambault, (1902) A. C. 575.

(e) Lawson v. Carr, 10 Moo. at p. 174 ; Forbes v. M eer Mahomed
Hossein (1873), 12 Beng. L. R. 210 ; 20 Suth. W. R. 44 ; Ameeroonissa
Khatoon v. Abedoonissa Khatoon (1874), L. R. 2 I. A. 87 ; 15 Beng.
L. R. 67 ; 23 Suth. W. R. 208.

THE HEARING OF THE APPEAL. 317

form (/). The Board will not try issues of fact which have New facts,
been left open by the courts below. Neither will the Board
entertain an appeal on a finding of fact which was not
questioned in the appellate court below. Dhanudari
ftnyh. v. Singh, (1006) 34 I. A. 164. The Judicial Com-
mittee may direct further evidence to be taken or remit the
the case for re-hearing. 3 & 4 Will. IV. c. 41, s. 8.

Where the lower court has declined to consider evidence, Remitting
the Judicial Committee may remand a case to the lower f^in^ re~
court to enable fresh evidence to be taken (#).

Where a case is reversed on appeal by the Judicial
Committee, and meanwhile another appeal involving the
same point is brought, the Judicial Committee may remand
the case to be decided on the basis of such decision (h).

The Judicial Committee are extremely loth to send a
case for re-trial, much more to decide it upon points which
appear to have been raised for the first time at their
Bar, and which possibly may have been treated as agreed
upon, and too clear for argument by the court below (•/).
So a question not raised before the jury cannot be raised on
appeal (k).

Where the writ and declaration charged fraud, and such Points not
charges failed, the appellant was not allowed to contend on raised below,
final appeal for the first time, that the pleadings and
evidence disclosed such negligence or breach of duty as
was sufficient to infer liability (Z).

The Judicial Committee in The Pleiades (m) approved
the language used by Lord Herschell, in a judgment in
the House of Lords (The Tasmania), where he said : "A

(/) Orphan Board v. Kraecjelius (B. Guiana, 1855), 9 Moo. 438, 447 ;
Bank of Bengal v. McLeod (Bengal, 1849), 7 Moo. 35 ; Bank of Bengal
v. Pagan (Bengal, 1849), 7 Moo. 61 ; Baboo Puhlwan Singh v. Mafia- '
Uuhah Singh, 2 Suth. P. C. (1871), pp. 442, 444.

(g) Thakur Shere Bahadur Sing v. Thakurain Dariao Kuar (Oude,
1877), 3 Cal. 645.

(h) Kaleepershad Tewanee v. Lalla Binda Lall, 12 Moo. I. A. 343,
349 ; Ponnamma v. Arumogam, (1905) A. C. p. 390.

(*) Mackay v. Commercial Bank of New Brunswick (New Bruns-
wick, 1874), L. R. 5 P. C. 394, 409.

(k) Victoria Corporation v. Patterson (Can. 1899), A. C. 615.

(/) Connecticut Fire Insurance Co. v. Kavanagh (Quebec 1892),
A. C. 473.

(m) (Vice-Adm. Gibraltar), (1891) A. C. at p. 263. See also
Borough of Randvrick v. Australian Cities Investment Co. (1893), 14
\V. Rep. (P. C.), at p. 420.

31 8 THE PRACTICE OF THE PRIVY COUNCIL.

Court of Appeal ought only to decide in favour of an
appellant on the ground there put forward for the first
time, if it be satisfied beyond doubt, first, that it has
before it all the facts bearing upon a new contention as
completely as would have been the case if the controversy
had arisen at the trial ; and, secondly, that no satisfactory
explanation could have been offered by those whose conduct
is impugned, if any opportunity for explanation had been
afforded them when in the witness box."

And in Archamlault v. Archambault, (1902) A. C. 58,
it was said : " It is a rule of practice by this Board that a
new point will not be entertained by their lordships which
might have been met by evidence in the courts below."

On the other hand, as regards a legal point, it has been
said : " When a question of law is raised for the first
time in a court of last resort, upon the construction of a
document, or upon facts either admitted or proved beyond
controversy, it is not only competent, but expedient, in the
interests of justice to entertain the plea. The expediency
of adopting that course may be doubted, when the plea
cannot be disposed of without deciding nice questions of
fact, in considering which the court of ultimate review
is placed in a much less advantageous position than the
courts below. But their lordships have no hesitation in
holding that the course ought not, in any case, to be
followed, unless the court is satisfied that the evidence
upon which they are asked to decide establishes beyond
doubt that the facts, if fully investigated, would have
supported the plea " (ri). Although not disposed to hold
parties too strictly to their pleadings in the lower courts,
the Judicial Committee consider that it would be an
act of great injustice to allow defences to be set up on
appeal which have not been suggested or attended to
below (o).

(n) Connecticut Fire Insurance Co. v. Kavanagh (Quebec, 1892),
A. C. 480.

(o) Garden Gully United Quartz Mining Co. v. McLister (Victoria,
1875), 1 App. Ca. 39, 57 ; and see Corporation of Adelaide v. White
(South Australia, 1886), 55 L. T. (N. S.) p. 3 ; Lyall v. Jardine (Hong
Kong, 1870), L. R. 3 P. C. at 328 ; Raja Row Vencata v. Enoogoonty
Sooriah (Madras, 1834), 2 Knapp, 259 ; Mackay v. Commercial Bank
of New Brunswick (Canada S. C. 1874), L. R. 5 P. C. at 409 ; Borough

THE HEARING OF THE APPEAL. 319

Any objection to the right of appeal, on the ground of Objections
the want of appealable value, ought to be taken when to the aPPeal-
the petition of appeal is lodged (p), but may be raised in
the case (q).

Where no question as to the plaintiff's right to sue as Objection not
heir of a person deceased was raised in the courts in India, raised below—
the Judicial Committee refused to entertain an objection
on that score, which was founded on matter of fact, not on founded on
matter of law. Had it been founded on matter of law — act '
e.g., had the suit been brought by a man as heir, who by j°^ '
his own showing could not possibly be heir, his statements
disclosing the existence of another person who stood before
him in the legal order of succession — the objection must
have been allowed at any stage (r). And so of a question
on the Law of Limitation, which arises upon the record (s) ;
but not where it turns upon facts which (owing to the
point not being raised) have not been inquired into in the
court below (t).

Where an objection for want of parties (u), or for Formal
misjoinder of parties (#), or an objection to the form in objections,
which the action is brought, or in which the proceedings
have been had, or any other objection merely of a formal
or a captious nature, and which, if made in the court below,
might perhaps have been removed (as in the case of evi-
dence, the reception of which has not been objected to in
the lower court, where better evidence might have been

of Randu-ick v. Australian Cities Investment Corporation (N. S. W.
1893), (1893) A. C. at p. 325.

(p) Nihnadhub Doss v Bishumber Doss (Bengal, 1869), 13 Moo.
I. A. 85.

(q) Aldridge v. Cato, L. R. 4 P. C. 319.

(r) 3/«7/.s v. Modee Pestonjee Koorsedjee (Bombay, 1838), 2 Moo.
I. A. 37.

(s) Maharajah Deraj Rajah Mahatab Chund Bahadoor v. Govern-
ment of Bengal (1850), 4 Moo. I. A. 466.

(t) Mussumat Imam Bandi v. Hurgovind Ghose (Bengal, 1848), 4
.Moo. I. A. 403.

(u) Orphan Board v. Van Reenan (Cape, 1829), 1 Knapp, 83 ; Bowes
\. City of Toronto (Upper Canada, 1858), 11 Moo. 463 ; Dhurm Das
Pandey v. Mussumat Shama Sondri Dibiah (Bengal, 1843), 3 Moo.
I. A. 229 ; Frankland v. M'Gusty, 1 Knapp, at p. 298.

(x) Marchioness of Bute and Others v. Mason and Others (N. S. W.
1849), 7 Moo. 1 ; Att.-Gen. of Newfoundland v. Cuddily (1836), 1 Moo.
at p. 87 ; Thornton v. Robin (Jersey, 1837), 1 Moo. at p. 450 ; Bank
of Bengal \. Macleod (Bengal, 1849), 7 Moo. at p. 60 ; 5 Moo. I. A. 1 ;
Hill v. The Queen (Jamaica, 1854), 8 Moo. at p. 138.

820 THE PRACTICE OF THE PRIVY COUNCIL.

adduced) (y), is urged for the first time in appeal, or where
relief (such as a general account) is prayed in appeal which
was not duly asked for at the proper time in the court
below (z) ; or where, in an appeal heard after leave to
appeal has been granted, it is urged that the proper course
would have been to apply to the court below for a new
trial (a) ; the Privy Council will nob at the hearing enter-
tain questions of this nature, nor objections on matters of
practice, unless it is clear that justice has not been done (b).

Where, pending an appeal, the appellant died, and by
order of the court below one of the respondents was sub-
stituted, the Judicial Committee refused to hear objection
thereto, the court below not having been moved (c).

" It is a wholesome province of this court (d) to disregard
points of mere form raised upon an appeal, when they do
not in any manner affect the substance of the subject in
controversy, and have not in any respect a tendency to
mislead or prejudice the defendant." But where matters
of form have been raised below, and the discretion of the
court below has been improperly exercised so as to constitute
a substantial denial of justice, they will be regarded, and
the relief will be given (e).

Technical Objections. — The Judicial Committee will look
to the broad principles of justice, and discourage mere
technical objections which do not affect the merits, and
more especially will discountenance the introduction of
objections that may have occurred in the course of litiga-
tion, but were not raised at the commencement of the
trial (/). Where the appellant obtained special leave to
appeal from a decree of the Supreme Court of Canada on
a petition stating that the construction of a statute was a

(y) Frankland v. M'Gusty (Demerara, 1830), 1 Knapp, at p. 310.
(z) Flint v. Walker (N. S. W. 1847), 5 Moo. at p. 201.
(a) Stace v. Griffith (St. Helena, 1869), 6 Moo. (N. S.) at p. 26.
(6) Moulvie Abdool Ali v. Mozufier Hossein Chowdry (Calcutta,
1871), 16 Suth. W. R. P. C. 22.

(c) Baboo Kasi Per sad Narain v. Mussumat Kawalbasi Kooer
(Bengal, 1851), 5 Moo. I. A. 146 ; and see Seths Gujmull v. Mussumat
Chahee Kowar (Ajmere and Mairwara, 1874), L. R. 2 I. A. 34.

(d) Orphan Board v. Kraegelius (B. Guiana, 1855), 9 Moo. 438, 447.

(e) Pollard v. Harragin (Trinidad and Tobago, 1891), A. C. 450.
(/) Zemindar of Ramnad v. Zemindar of Yettiapooram (Madras,

1859), 7 Moo. I. A. 441.

THE HEARING OF THE APPEAL.

321

matter of general public importance, without stating that
since the original judgment the statute had been repealed,
but the omission was immaterial and bond fide, the objection
to the admission of the appeal was not upheld, and the
successful appellant was not deprived of his right to costs.
Mar Donald v. Belcher, (1904) A. C. 429.

The Judicial Committee will recognise a change in the
statute law made since the case was instituted. By a change
in the law introduced by the Imperial statute 17 & 18 Viet,
c. 104, s. 299, the loss, in a case of collision between two
vessels, was made chargeable wholly against the ship which,
in contravention of sect. 295, had not exhibited lights.
The Judicial Committee, upon this point being urged for
the first time on appeal, decided that the collision had taken
place under such circumstances as to bring the vessel within
the meaning of the statute. Lord Kingsdown said (g),
" Their lordships regret that in this, as it has happened in
some other cases, they are obliged to decide a point on
which in truth no opinion has ever been expressed by the
learned judge from whom the appeal is brought. They
cannot, however, deprive the party of the right to avail
himself of the objection."

Colonial Statute. — But, it was said in another case, if in
consequence of an Act of the provincial legislature any
alteration in the rights of the parties has taken place, the
Judicial Committee will take no notice of it unless it
appears on the record (h) (but cf. Mac Donald v. Belclwr
above).

Points patent on the record. — Although a point has not
been taken in the court below, yet, if it is patent on the
face of the proceedings, the court can take judicial notice
of it (•/).

The Privy Council, if the case presented to it is
imperfect, will itself call for a proceeding or document

Change of
law by Im-
perial statute
not on the
record.

Change of
law by colo-
nial statute
not on the
record.

Original
documents

(g) Lawson v. Carr (Adm. 1856), 10 Moo. at p. 174.

(h) Donegani v. Donegani (Lower Canada, 1835), 3 Knapp, at 88 ;
cf. Devine v. Holloway (N. S. W. 1861), 14 Moo. at p. 298.

(*') Devine v. Holloway, 14 Moo. at p. 298 ; cf. Sreemutty Dossee v.
Ranee Lalunmonee (Calcutta, 1869), 12 Moo. I. A. 470 ; Council of the
Borough of Randwick v. Australian Cities Investment Corporation,
Ltd. (X. S. W. 1893), A. C. 322.

P.O. 21

322 THE PRACTICE OF THE PRIVY COUNCIL.

which ought to have been laid before it (&), and will, on
petition, where original documents are necessary to be
produced, order their transmission (I), or will inquire,
through its registrar, into the practice and precedents of
any court from which an appeal has been brought (m).
For cases in which the Board has ordered fresh evidence to
be brought before it, see p. 289.

Evidence — Impeached Documents — If an original document
of importance in a cause be impeached, the court will, on a
petition for the purpose, direct it to be transmitted to the
Council Office (n).

Reference to In a case from Jersey (o) the Privy Council ordered a

asltotits10W reference to the court below to certify to them a point of

practice. practice. The certificate having been returned, the court

refused to allow the respondent at the hearing to allege

that the certificate was inaccurate, as he might have

alleged it in a petition supported by affidavits and asked

for a fresh reference.

Evidence as ^he Privy Council receives (generally upon affidavit)

to facts which . , , . , , i i »

could not evidence which was not and could not be before the court

be before the below, when the question is as to the circumstances under
: ow' which such court ordered the suspension of a practitioner

or the like, and it will postpone the hearing to enable the
Affidavits on necessary evidence to be obtained ( p) ; and it constantly

receives affidavits on both sides upon applications for leave

to appeal.

Power of It has been stated above that by 3 & 4 Will. IV. c. 41 (q),

Committee to ss- 7> 8» the Judicial Committee has the power of taking
take evidence, evidence. Where evidence tendered to the court below is

sought to be used before the Privy Council, a petition to

the Judicial Committee ought to be presented for that

(k) Mason v. Att.-Gen. of Jamaica (1843), 4 Moo. 231 ; Blue and
Deschamps v. Red Mountain Railway, (1909) A. C. 36.

(I) McCarthy v. Judah (Lower Canada, 1858), 12 Moo. at p. 56.

(m) Jackson v. Wilson (I. of M. 1838), 3 Moo. at p. 182.

(n) Mussumat Khoor Konwur v. Baboo Moodnarain Singh (Calcutta
1861), 9 Moo. I. A. at p. 10 ; McCarthy v. Judah (Low. Can. 1858), 12
Moo. 47 ; and see order for certified copy of documents of title, Mason
v. Att.-Gen. of Jamaica (Chancery of Jam. 1843), 4 Moo. 228 ; Ranee
Surnomoyee v. Maharajah Sutteeschunder Roy Bahadoor (Calcutta,
1864), 10 Moo. I. A. 123.

(o) Lequesne v. Nicolle (Jersey, 1830), 1 Knapp, 257.

(p) Smith v. Justices of Sierra Leone (1841), 3 Moo. at p. 365.

(q) See Appendix A, p. 423.

THE HEARING OF THE APPEAL. 323

purpose, who, if they see fit, will issue a Committee order for
its transmission by the court below (r).

When additional evidence has been tendered only on an Evidence not
application to review, and the refusal to review is not £iven below,
appealed from, the Judicial Committee will not admit such
evidence (s). Certain documents put in evidence before a
subordinate court were suppressed by the judge of that
court, so that the reviewing court from which the appeal
oame to the Privy Council had no opportunity of considering
them. The Judicial Committee in such circumstances
remitted the case to the court below that such evidence
might be taken into consideration (t).

For cases which have been remitted for further evidence Cases re-
to be taken, see Le Feuvre v. Sullivan (u), Wallace v.
Me Sweeney (x), Dyson v. Godfrey (y).

The Judicial Committee may refer a question to an Power of
arbitrator under sect. 17 of 3 & 4 Will. IV. c. 41, and
possess all the powers which His Majesty's courts formerly questions
possessed of issuing a commission for the examination of and to. ls.sue

., , . commission,

witnesses on interrogatories and otherwise by virtue of 13

Geo. III. c. G3, s. 44, and 1 Will. IV. c. 22.

Where the court below has not found all the facts neces-
sary for the final disposal of the case, the Judicial Com-
mittee, deciding so far as they have materials for judgment,
may remit the case in order that the needful inquiries may
be made and justice finally done (z). If ample opportunities
existed of bringing the evidence forward before, the case
will not be remitted (a).

If the case is remitted to the court below to take and Fresh appeal,
consider further evidence, the reference to the Judicial when neces-

__ sary.

(r) Jephson v. Riera (Gibraltar, 1835), 3 Knapp, 130, 136 ; Canepa,
v. Larios, 2 Knapp, at 278. See Meiklejohn v. Att.-Gen. Lower
Canada (1834), 2 Knapp, at 330.

(s) Sheikh Imdad Ali v. Mussumat Kootby Begum (Bengal, 1841),
3 Moo. I. A. 1.

(t) Juveer Bhaee v. Vuruj Bhaee (Bombay, 1844), 3 Moo. I. A. 324.

(u) (Jersey, 1855), 10 Moo. 1.

(*) (Xova Scotia, 1868), 5 Moo. (X. S.) 244.

(y) (Jersey, 1884), 9 App. Cas. 726.

(z) Muttu-sawmy Jagavera Yettaya Nailker v. Vencataswara Yettaya
(Madras, 1868), 12 Moo. I. A. 203.

(a ) I'n ja Row Vencatta Niladoy Rao v. Enoogoonly Sooriah (Madras,

Knapp, 259 ; Seth Lukhi
(Agra, 1870), 13 Moo. I. A. 365.

1834), 2 Knapp, 259 ;_Seth Lukhmee Chund Rao v. Sett Indra Mutt

21—2

824

THE PRACTICE OF THE PRIVY COUNCIL.

Appeal from
interlocutory
order.

Appeal from
decision in
lower court.

Alteration
after appeal.

Committee is exhausted and a fresh appeal is necessary to
bring the matter again before them (b) ; but otherwise if
the order of the Privy Council is to " take evidence and
remit it" (c).

The suitor need not appeal from every interlocutory
order which does not purport to dispose of the cause and by
which he may feel himself aggrieved, nor in appealing from
the final decision is he bound to appeal in express terms
from any interlocutory order of which he may complain —
the appeal from the final decision enables the court to correct
any interlocutory order which it may deem erroneous (d).
(Cf. p. 195 supra.) The same rule applies to courts prac-
tising according to the civil law, if the interlocutory order
has not the force or effect of a definitive sentence (e). The
objections to the interlocutory orders should be stated in
the appellant's case.

But where, on appeal to the Privy Council from a decision
of the High Court given on special appeal, it is desired to
include in the appeal the decisions of the lower courts on
the facts, an application for special leave to do so should be
made previous to the hearing. The Judicial Committee
will not, as a rule, allow a petition of appeal from those
decisions to be put in at the hearing, nunc pro tune (/).

The High Court of Bombay after the appeal was presented
made an alteration in the order. Strictly speaking such an
alteration was beyond the competency of the court; the
Judicial Committee, however, accepted it, and dismissed the
appeal (#).

(6) ThaTcur Shere Bahadur Singh v. Thakurain Dariao Kuar (1877),
I. L. B. 3 Calc. 645 ; Jeswunt Sing-jee Ubby Sing-jee v. Jet Sing-jee
Ubby Sing-jee (Bombay, 1844), 3 Moo. I. A. 245.

(d) Maharajah Moheshur Sing v. The Bengal Government (Calc.
1859), 7 Moo. I. A. at 302 ; followed in Forbes v. Ameeronissa Begum
(Calc. 1865), 10 Moo. I. A. at 359 ; Sheonath v. Ramnath (Oude, 1865),
ibid, at 423.

(e) Cameron v. Fraser (British Guiana, 1842), 4 Moo. 1 ; and cf.
The Queen v. Belcher (Adm. 1849), 6 Moo. 471 ; Williams v. Bishop of
Salisbury (Canterbury, 1863), 2 Moo. (N. S.) 377 ; and Jones v. Gough
(Canterbury, 1865), 3 Moo. (N. S.) at p. 12.

(/) Golam All v. Kallykishen Thalcoor (1872), 12 Bengal, L. B. P. C.
107 ; followed in Nilmoney Singh Deo v. Beer Singh and the Govern-
ment, P. C. Archives, July 18, 1872.

(g) Navivahoo v. Turner (Bombay, 1889), L. B. 16 I. A. 156.

CHAPTEE XIII.

COSTS.

WHEN an appellant obtains leave to appeal to the Sovereign
in Council, whether the leave be given in the court below in
pursuance of a general grant of the right of appeal, or
whether the leave be granted upon a special application
to the Sovereign in Council, the leave is invariably subject
to the condition that the appellant shall give security for
the payment of the respondent's costs of the appeal. By
sect. 15 of the Act of 1834 it is enacted that "the costs 3 & 4 \vm. iv.
incurred in the prosecution of any appeal or matter referred c- 41« 8- 15-
to the Judicial Committee, and of such issue as the same
Committee shall under the Act direct, shall be paid by such
party or parties, person or persons, and be taxed by the
Registrar of the Privy Council, or such other person or
persons, to be appointed by His Majesty in Council or the
Judicial Committee, and in such manner as the said Com-
mittee shall direct." By sect. 28 of the same statute the
same power is given to the Sovereign in Council of enforcing
judgment decrees and orders (for costs) as are exercised by
the High Court of Chancery or the Court of King's Bench
(and both in person am and in rem), or as are given to any
Court Ecclesiastical by the 2 & 3 Will. IV. c. 93.

By sect. 12 of 6 & 7 Viet c. 38, the costs of defending Costs in the
any decree or sentence appealed from as of prosecuting any SC(5 of
appeal, or in any manner intervening in any cause of appeal,
and the costs on either side, or of any party, in the court
below, and the costs of opposing any matter which shall be
referred to the said Judicial Committee, and the costs of
all such issues as shall be tried by direction of the said
Judicial Committee respecting any such appeal or matter,
shall be paid by such party or parties, person or persons, as
the said Judicial Committee shall order. Such costs are
taxed as directed by sect. 15 of 3 & 4 Will. IV. c. 41. The

326 THE PRACTICE OF THE PRIVY COUNCIL.

costs of the proceedings both in the court below and on
appeal may be ordered to be paid by either party, and the
costs in the various proceedings in the action may be set off :
McKellar v. Wallace (1853), 8 Moo. 378-415.

Regulations as to costs in the Privy Council are now
provided by the Judicial Committee Eules, which apply to
all matters falling within the appellate jurisdiction of His
Majesty in Council (a).

Taxation of 75. All bills of costs under the orders of the Judicial
Committee on appeals, petitions, and other matters,
shall be referred to the Registrar of the Privy Council,
or such other person as the Judicial Committee may
appoint, for taxation, and all such taxations shall be
regulated by the Schedule of Fees set forth in
Schedule C. hereto.

The Schedule of Fees is in two parts, the first dealing
with the fees allowed to agents, the second with the fees of
the Council Office.

Fees allowed to Agents conducting Appeals or other Matter*
before the Judicial Committee of the Privy Council.

£ s. d,

Retaining Fee 0 13 4

Perusing written Record, at the rate of, for every

25 folios 068

Perusing printed Record, at the rate of, for every

printed sheet of 8 pages 1 1 0

Attendances at the Council Office, or elsewhere,
on ordinary business, such as to enter an
Appearance, to make a search, to lodge a Peti-
tion or Affidavit, or to retain Counsel 0 10 0

(a) A pamphlet on Costs in Privy Council Appeals, with Precedents
of Bills of Costs and Notes, has recently been written by Mr. W.
Reeve Wallace, Chief Clerk of the Judicial Department of the
Privy Council Office. It is published by H.M.'s Stationery Office,
Price Is. M.

COSTS.

£ s. d.
Attending at the Council Office to examine proof

print of the Record with the certified Record

per diem 330
Attending at the Council Chamber on Summons

for the hearing of a Petition 168

Attending at the Council Chamber all day on an

Appeal not called on 268

Attending the Hearing of an Appeal .per diem 368

Attending a Judgment 1 6 8

Correcting English proofs, at the rate of, for

erery printed sheet of 8 pages 0 10 6

Correcting Foreign or Indian Proofs, at the rate

of, for every printed sheet of 8 pages 110

Instructions for Petition 0 10 0

Drawing Petition, Case, or Affidavit per folio 020

Copying Petition, Case, or Affidavit .per folio 006

Instructions for Case 100

Instructions to Counsel to argue an Appeal 100

Instructions to Counsel to argue a Petition 0 10 0

Attending Consultation 100

Sessions Fee for each year or part of a year

from the date of Appearance 330

Drawing Bill of Costs per folio 010

Copying Bill of Costs per folio 006

Attending Taxation of Costs of an Appeal 2 2 0

Attending Taxation of Costs of a Petition 1 1 0

II.

Council Office Fees.

Entering Appearance 0 10 0

Lodging Petition of Appeal 200

Lodging any other Petition 100

Lodging Case 1 0 0

Setting down Appeal (chargeable to Appellant

only) 200

Setting down Petition (chargeable to Petitioner

only) 100

Summons 0 10 0

328 THE PRACTICE OF THE PRIVY COUNCIL.

£ «. d.

Committee Report 1 10 0

Original Order of His Majesty in Council deter-
mining an Appeal 400

Any other Original Order of His Majesty in

Council .' 200

Plain Copy of an Order of His Majesty in Council 0 5 0

Original Order of the Judicial Committee 1 10 0

Plain Copy of Committee Order 0 5 0

Lodging Affidavit 0 10 0

Certificate delivered to Parties 0 10 0

Committee References 200

Lodging Caveat 100

Subpoena to Witnesses 0 10 0

Taxing Fee in Appeals 300

Taxing Fee in Petitions 2 0 0

The rules as to the taxing of costs are :

What costs
taxed in
England.

76. The taxation of costs in England shall be limited
to costs incurred in England.

The Colonial Rules of Appeal provide that :

Where the Judicial Committee directs a party to
bear the costs of an appeal incurred in the colony, such
costs shall be taxed by the proper officer of the court
in accordance with the rules for the time being regu-
lating taxation in the court.

Order to tax. 77. The Eegistrar of the Privy Council shall, with
all convenient speed after the Judicial Committee have
given their decision as to the costs of an appeal,
petition, or other matter, issue to the party to whom
costs have been awarded an order to tax and a notice
specifying the day and hour appointed by him for
taxation. The party receiving such order to tax and
notice shall, not less than forty-eight hours before the
time appointed for taxation, lodge his bill of costs

COSTS. 329

(together with all necessary vouchers for disburse-
ments), and serve the opposite party with a copy of his
bill of costs and of the order to tax and notice.

78. The taxing officer may, if he think fit, disallow Power of

to any party who fails to lodge his bill of costs ^ef where

(together with all necessary vouchers for disburse- taxation

ments) within the time prescribed by the last-preceding trough the

rule, or who in any way delays or impedes a taxation, fault of the

the charges to which such party would otherwise be costs veto

entitled for drawing his bill of costs and attending the l
taxation.

79. Any party aggrieved by a taxation may appeal Appeal from

from the decision of the taxing officer to the Judicial Ol

Committee. The appeal shall be heard by way of officer.
motion, and the party appealing shall give three clear
days' notice of motion to the opposite party, and shall
also leave a copy of such notice in the Registry of the
Privy Council.

80. The amount allowed by the taxing officer on the Amount of
taxation shall, subject to any appeal from his taxation

to the Judicial Committee and subject to any direction in ^is
from the Committee to the contrary, be inserted in His order in
Majesty's Order in Council determining the appeal or CounciL
petition.

82. Where the appellant has lodged security for the Security to
respondent's costs of an appeal in the Registry of the

Privy Council the Registrar of the Privy Council shall Majesty's

• i . , , . ; . T -, . Order in

deal with such security in accordance with the direc- council
tions contained in His Majesty's Order in Council
determining the appeal.

For the guidance of practitioners the following points,
which are taken by permission from Mr. Wallace's pamphlet,
are to be noted :

1. Agency, in the technical sense, does not apply to
Privy Council Appeals, and the London solicitor is treated
as a principal by the Privy Council Office.

330 THE PRACTICE OF THE PRIVY COUNCIL.

Form of 2. Bills should be drawn in the High Court form, and

bills. disbursements should be shown in an inner column.

Papers and vouchers should be lodged with the bill, and,
in cases where Colonial Counsel are engaged, the attention
of solicitors is specially directed to the desirability of
obtaining vouchers for fees from them before they leave
England, so that the taxation may not be delayed.
Basis of 3. Unless otherwise specially provided, costs are taxed

upon a party and party basis, and letters between the
London and Colonial solicitors are not as a rule allowed.
In this connection it should be noted that the fees for
perusing the record, examining the proof and correcting
the revise, are intended to cover, as a rule, all attendances
and letters connected with the record, except those shown
in the precedents. It may also be observed that perusing
and making copies of documents outside the record (such
as Colonial Statutes, etc.) are party and party costs only in
exceptional circumstances, It is, however, sometimes
convenient that an Appendix of Statutes, the construction
of which is the subject-matter of an appeal, should be
prepared. In such a case, where both parties consent in
writing that the costs of the Appendix shall be costs in
the appeal, effect will be given upon taxation to such
an agreement.

4. A party desiring his own costs to be taxed as between
solicitor and client should lodge a formal petition for the
purpose.

5. Attention is drawn to rule 76 of the Judicial Com-
mittee Rules, 1908, which directs that the taxation of
costs in England shall be limited to costs incurred in
England.

Costs in In every appeal there are costs incurred in the court

appealed from before the despatch of the record to the
Privy Council Office, and these, which are invariably
provided for in the King's Order disposing of the appeal,
are dealt with by the taxing officer of that court.

There is one exception to this rule. In appeals (limited
in practice to Canada) where the case is drawn by Colonial
counsel, and brought over by him when he comes to
argue the appeal, the London solicitor, though his part
in the preparation of the case is limited to lodging it at

COSTS. 331

the Privy Council Office, should nevertheless include in his
bill of costs the drawing, etc., on the scale shown in
Precedent 3. This is the only way in which a successful
party can obtain these costs at all, as the taxing officer
in the court appealed from would certainly exclude them
from any bill brought in to him for taxation, on the
ground that they were not technically incurred in the
Colonial Court, but in the Privy Council. The amounts
so allowed can be, and no doubt in practice invariably
are, easily adjusted between the London and Colonial
solicitors.

0. It should be borne in mind that until the petition of When juris-
appeal has been lodged the Judicial Committee has no diction arises,
jurisdiction to make an order for the taxation of costs. In
the event, therefore, of an appeal being dismissed for non-
prosecution or withdrawn before this step, the respondent's
only method of obtaining an order for payment of his costs
incurred up to such dismissal or withdrawal is to apply by
petition for a King's Order for the purpose.

An order of reference to tax the costs is made to the Reference
registrar, and the amount of the taxed costs is inserted in to tax-
the report of the Judicial Committee to the Sovereign in
Council, and is embodied in the Order in Council which
contains the final decree. The judgment of the Judicial Costs dealt
Committee, upon which the report to the Sovereign is based, with in
is read in open court, when the several parties should attend. decree-
It then becomes the duty of the solicitors to take care that
the decree which is drawn up thereon is not entered in
extraordinary terms as to costs or otherwise.

Costs should be asked for at the hearing, while the facts costs should
are fresh in the recollection of the court, and while any be asked for
special circumstances which the case presents can be
considered. In Lindo v. Barrett (b) the Judicial Committee
in the report gave no directions as to costs, and the Order
in Council was delivered from the Council Office to the
appellant and transmitted to Jamaica and there acted upon.

(b) (Jamaica, 1856), 9 Moo. at p. 461.

332

THE PRACTICE OF THE PRIVY COUNCIL.

Discretion
as to costs.

Exercise of
discretion
where appel-
lant suc-
cessful.

In these circumstances, the Judicial Committee held it was
too late for the appellant to ask for costs. In a later case
where no mention was made of costs in the report of the
Judicial Committee, the Order in Council when drawn up
ordered that the appeal be allowed with costs (c).

Discretion. — The discretion of the Judicial Committee as
to costs is absolute.

Costs rest so much in the discretion of all tribunals that
it is difficult to lay down any positive rules with regard to
them ; but it may be useful to notice the mode in which the
subject has in general been dealt with by the Judicial
Committee, though the Board is apt to treat each case upon
its own merits and not to be bound by the practice in past
cases or circumstances alleged to be similar.

There are many circumstances which will weigh with the
Judicial Committee against allowing to a successful appellant
the costs of his appeal. Sometimes they give no costs (d);
as where his conduct has been such as to mislead the opposite
party (e), or to put them to needless expense (/), or where
his proceedings have been unreasonably dilatory (g) or in
any way litigious or vexatious, or his claims exorbitant (h).
So where damages were assessed at an excessive figure, and
the amount recovered fell short of the appealable value, no
costs were given (i).

So, where the appellant succeeds in obtaining a slight
variation of the decree complained of, but the variation
confers no real benefit upon him, he may not get his costs (/:).
Where the decree of the court below was affirmed, with the
addition of a declaration which the appellant had an
opportunity of obtaining from the court below without

(d) Lawson v. Carr (Adm. 1856), 10 Moo. 174.

(e) Batten v. The Queen (Adm. 1857), 11 Moo. at p. 287.
(/) Mackellar v. Wallace (Calc, 1853), 8 Moo. at p. 418.

(g) Pattabhiramia v. Vencatarow Naicken (Madras, 1870), 13 Moo.
I. A. 560.

(h) Nedham v. Simpson (Jamaica, 1831), 2 Knapp, 1 ; Harrison v.
The Queen (V.-A. St. Helena, 1856), 10 Moo. at p. 225.

(i) Mudhem Mohun Doss v. Gokul Doss, 10 Moo. I. A. 563.

(k) Labouchere v. Tupper (I. of M. 1857), 11 Moo. at p. 223 ; Board-
man v. Quayle (I. of M. 1857), ibid, at p. 271 ; Van Breda v. Silberbauer
(C. G. H. 1869), L. R. 3 P. C. 84, 100 ; also Lalla Bunseedhur v. Koon-
wur Bindeseree Dutt Singh (Agra, 1866), 10 Moo. 1. A. 454, 490.

COSTS. 333

appealing, the Privy Council dismissed the appeal with
costs ; or where he has prevailed through a point which was
not taken in the court below, the Judicial Committee some-
times, if the general principle of the judgment appealed from
is affirmed, make him pay the costs of the appeal (/).

It may be a special condition of leave to appeal that the
appellant should pay the costs in any event. (Cf. Com-
,,ii**i oners of Taxation v. Ant ill (1902), A. C. p. 422.)

Where the Privy Council ordered that a new trial be Where new
had in the court below and that the appellant should be at fc^^^new
liberty to amend his declaration as he should think fit, they ordered,
imposed the terms of the defendant being allowed to plead
de nave, and of the appellant paying the costs of the trial
and all subsequent costs already incurred in the court
b€*low, and also (as the appellant had not applied to
amend the pleadings at the proper time, and had refused
a non-suit) the costs of the appeal (m).

Where the Privy Council ordered a new trial, but the
appeal was below the appealable value, and special leave had
been given on the ground that the decision was of general
importance, the Committee ordered the respondent to pay
the appellants the costs incurred by them in the colonial
courts but made no order as to costs in the Privy Council
appeal. Sun Fire Office \. Hart, 14 A. C. 105.

Where there had been inaccuracies in the judge's Appellant
summing-up, which might reasonably lead the appellant to unsuccessful,
think that his case had not been properly understood by
the court below, the Privy Council, though dismissing the
appeal, gave the respondent no costs of the appeal (n).
Where there is more than one respondent, though separate
are lodged, sometimes only one set of costs is given (o).

(1) Bertram v. Godfrey (Jersey, 1830), 1 Knapp, 381 ; see Thompson
/ / (Jamaica, 1841), 3 Moo. at p. 424 ; Stratton v. Sytnon
\ mcent, 1837), 2 Moo. at p. 132.

(w) Rainy v. Bravo (Sierra Leone, 1872), L. R. 4 P. C. 287 ; Jenoure
v D . (Jamaica, 1891), A. C. at 80 ; Devine v. Wilson (N. S. W.
10 Moo. at 532 ; Humphrey v. Sou-land (X. S. W. 1862), 15
Moo. at 374.

(n} General Iron Screw Company v. Mo»s (Adm. 1861), 15 Moo. at
p. 1

(o) North Sydney Investment and Tramway Co. v. Higgins, Feb-
ruary 25, 1899 ; seeus, Bank of N. S. W. v. McMahon and Others,
June 0. 1890.

334

THE PRACTICE OF THE PRIVY COUNCIL.

Each party
pay their
own costs.

Further
evidence on
appeal.

Case fairly
open to doubt.

Appellant

partly

successful.

Decree

affirmed ;

damages

altered.

There are many cases in which, although the appellant
succeeds and is free from blame, yet it would be hard to
make the respondent pay the costs of both parties ; in
such cases the Privy Council, in the exercise of their
discretion, leave each to pay his own costs (p). So where
on the point decided below the appellant succeeds, but
owing to the Privy Council hearing the case on the merits
the appeal is dismissed on grounds wholly different from
those on which the court below gave its decision, it may
be without costs (q).

It seems that where further evidence is gone into before
the Privy Council, this circumstance will tend to prevent
them from giving costs to the appellant, even if the decree
of the court below is reversed (r).

The Privy Council often decline to allow costs against
the appellant, though unsuccessful, where they consider the
case to be in itself one which is fairly open to doubt and
upon which it was reasonable to take their opinion (s).
So also where each party succeeds and each fails upon
a substantial issue. In such a case the respondent
may be ordered to pay one moiety of the costs of the
record (t).

"Where there was an appeal to a cross appeal, and each
party succeeded in points, no costs were given. Cf. Relemeijer
v. Obermuller (1837), 2 Moo. p. 125 ; Bombay, etc., Trading
Co. v. Mirza Mahomed Sherazee (1878), C. A. 5 I. A.
130).

As to the apportionment of costs where a party is partly
successful, see Suraj Bunsi Koer v. Sheo Proshad Singh (11).

Where the Judicial Committee affirmed the judgment
appealed from, but reduced by one-half the amount of
damages thereby given, the affirmance was without costs (x) ;

(p) Maxwell v. Deare, 8 Moo. at p. 377 ; Beaudry v. Mayor, etc, of
Montreal (1858), 11 Moo. at p. 426 ; Rajendro Nath Holdar v. Jogoidro
Nath Banerjee (Bengal, 1871), 14 Moo. I. A. 67.

(q) Fischer v. Kamala Naicker (Madras, 1860), 8 Moo. I. A. 170.

(r) Sorensen v. The Queen (Adm. 1857), 11 Moo. at p. 140.

(s) Churchward v. Palmer (Adm. 1856), 10 Moo. at p. 487.

(t) Peacock v. Byjnauth (Bengal, 1891), L. R. 18 I. A. 78.

(u) (Bengal, 1879), L. R. 6 I. A. 88 ; 5 Calc. 148.

(x) Gahan v. Lafitte (St. Lucia, 1842), 3 Moo. at p. 397.

COSTS.

335

but on increasing the damages they have given costs (y).
Where the decree appealed from is varied in respect of the
rate of interest allowed on the principal sum, this circum-
stance has some weight in the decision of the Committee on
costs ; but it is not conclusive (z).

In a case where the appellant, who had been recklessly
charged by the respondent, obtained a reversal of the
decree, the Judicial Committee ordered the respondent to
pay the appellant's costs both here and below («).

The Judicial Committee allows the costs of both parties to
be paid out of the estate, whether the appeal be successful or
not, in those cases only where the circumstances are such as
would have justified the court below in making a similar
allowance (b).

Sometimes when a new trial is ordered, the costs of the
appeal as well as those of the court below are directed to
abide the event of such new trial (c).

Where the order of a colonial court for contempt of court
is reversed, the Privy Council generally make no order as
to costs (d) ; in a case, however, where there had been no
contempt of court, the judge below was ordered to pay the
costs of the appeal (e).

Where the appellant has obtained leave to appeal upon
false pretences, the appeal will be dismissed with costs, upon
the misrepresentation being discovered (/).

Reckless
charges of
fraud, etc.

Costs out of
the estate,
when.

New trial.

Contempt of
court.

Leave to
appeal by
misrepresen-
tation.

(y) Lord v. Commissioners of Sydney (1859), 12 Moo. at p. 500.

(z) Murtunjoy Chuckerbutty v. Cochrane (Calcutta, 1865), 10 Moo.
I. A. 229 ; Latta Bumeedhur v. Koonwar Bindeseree Dutt Singh (Agra,
1866), 10 Moo. I. A. 454.

(a) Sana Nurain Rao v. Huree Punth Brao (Agra, 1862), 9 Moo.
I. A.

(6) Arbuthnot v. Norton (Madras, 1846), 5 Moo. at p. 231 ; Croker v.
Marquis of Hertford (Prerog. Ct. Cant. 1844), 4 Moo. at p. 368 ; Brerner
v. Freeman (Prerog. Ct. Cant. 1857), 10 Moo. at p. 374 ; Dimes v.
Dimes (Prerog. Ct. Cant. 1856), ibid, at p. 440 ; Scouler v. Plowright,
ibid, at p. 458.

(d) In re Dmtmie and Arrindell (Brit. Guiana, 1841), 3 Moo. 414,
supra ; see Newton v. Judges of High Court of North-Western Pro-
vinces (1871), 8 Moo. (N. S.) at p. 223 ; L. R. 4 P. C. 18 ; In re Ramsay
(Low. Can. 1870), 7 Moo. (N. S.) at p. 270 ; L. R. 3 P. C. 427.

(e) McLeod v. St. Aubyn (St. Vincent), (1899) A. C. at p. 562.

(f) Wil*o,> v. Callender (Barbadoes, 1853), 9 Moo. at p. 103;
Bulkeley v. Scutz (Constantinople, 1870), 6 Moo. (N. S.) at p. 483.

336

THE PRACTICE OF THE PRIVY COUNCIL.

wrongly
given.

Appellant
becoming
insolvent.

Taxation on
the pauper
scale.

Costs against
the Crown.

Where objection was not taken by the respondent until a
late stage of the hearing, and it did not appear that the mis-
statement was intentional, the appeal was allowed, but
without costs (g).

Where leave to appeal had been given in a criminal pro-
ceeding and was afterwards rescinded, the court being of
opinion that it ought not to have been given, but that the
conduct of the parties was in no way involved, the rescission
was made without costs on either side (fi).

After] a cause was set down for hearing, the appellant
was declared an insolvent under the provisions of 11 & 12
Viet. c. 21, and the appeal was ordered to stand over in
order that the official assignee might have notice. The
official assignee having taken no steps, the appeal was dis-
missed, but each party was left to pay his own costs (i).

31. Where the Judicial Committee directs costs to
be taxed on the pauper scale, the taxing officer shall
not allow any fees of counsel, and shall only award to
the agents out-of-pocket expenses and a reasonable
allowance to cover office expenses, such allowance
to be taken at about three-eighths of the usual
professional charges in ordinary appeals.

In a successful appeal of Johnson v. Lindsay, (1892) A. 0.
110, the pauper appellant's costs having been taxed on the
"dives " scale at 260/. were on review of the taxation taxed
at 50/. on this basis.

Where the respondent was ordered to pay the costs of the
appellants, who pending the appeal had obtained leave to
continue the appeal in formd pauperis, the costs were ordered
from that date to be taxed on that footing. McLeod v. St.
Aulyn, (1899) A. C. 562. If the party appeared in formd
paup&ris in the court below, such costs will be awarded as
would be payable in the colony in pauper cases. Wasteneys
v. TF., (1900) A. C. 446.

The Privy Council have sometimes, in cases where they

(g) Ram Sabuk Base v. Kaminee Koomaree Dossee (1874), 14 Beng.
L. R, 394 ; Mussoorie Bank v. Raynor (Allahabad, 1882), 7 A. C. 321.

(h) In re Ames (Jersey, 1841), 3 Moo. at p. 413.

(i) Gooroochurn Sein v. Radanauth Sein, 11 Moo. 76; 7 Moo.
I. A. 1.

COSTS.

cannot allow costs, expressed an opinion on the merits with
a view to induce the Crown to allow them (&).

The practice of the Board as regards costs in cases between
the Crown and a subject was considered in the appeal of
Johnson v. Reyem, (1904) A. C. 819, at p. 824.

The Board declared that it would in future adhere to the
practice of the House of Lords, and that the rale would be
that the Crown neither pays nor receives costs unless the
case is governed by some local statute or there are excep-
tional circumstances justifying a departure from the ordinary
rule.

Although money paid under a decree when ordered to be Xo interest
refunded is payable with interest, no interest is payable upon Pa7able-
costs so refunded (/).

No appeal lies as to costs merely (m), but where the court No appeal
possesses no discretion in disallowing costs (n), or where ^ to costs-
there has been mistake (0), they may be made the subject of
appeal.

Where a reference is made concerning constitutional Constitutional
questions under powers such as those conferred by the questlons-
Ontario statute (53 Viet. c. 13, s. 7, supra, p. 56), it is
the rule of the Judicial Committee to make no order as to
costs (p).

When respondents lodged a case, but did not appear at Respondent
the hearing, the appeal was dismissed with costs to be paid J^1^0*86
to respondents down to the lodging of the cases, and ordered appearing,
to be paid out of the deposit placed in the registry as
security (q).

Where parties in the same interest, who might have acted Separate

cases, same
— interest, one
set of costs.

(fc) Cf. Cloete v. Beg. (Xatal, 1854), 8 Moo. 492 ; Smyth v. Beg.,
(1898) A. C. 788.

(1) Rodger v. Comptoir d/Escompte (Hong Kong, 1871), L. R. 3 P. C.
at p. 477 ; 7 Moo. (N. S.) 331.

(m) Richards v. Birley (Prerog. Ct. York, 1864), 2 Moo. (X. S.) 96 ;
Rieken v. Yorke Peninsula Justices, (1908) A. C. 454.

(n) Mussumat Keemee Baee v. Latchman Da-s Narain-Das (Bombay,
1837), 1 Moo. I. A. 470.

(o) Attenboro1 \. Kemp (Arches Court, 1861), 14 Moo. 351 ; Yea v.
Tatem (H. C. Adm. 1871), L. R. 3 P. C. 696.

(p) Att.-Gen. of Dom. v. Alt. -Gen. of Ont., (1898) A. C. at 255. Cf.
Same v. Same, ibid. p. 717 ; Same v. Same, (1894) A. C. at 201 ; and
see (1896) A. C. at 371.

(q) O'Shanassy v. Joachim (N. S. W. 1876), 1 A. C. 82.

P.C. 22

338

THE PRACTICE OF THE PRIVY COUNCIL.

Several
respondents.

Costs of
counsel. *

Set-off of
costs.j

Costs dis-
allowed of
irrelevant
matter,

together in an appeal, think proper to put in separate cases,
or to employ different solicitors, the Judicial Committee
generally inclines, unless very good reason be given for the
severance, to allow only one set of costs out of the estate (r),
such costs being awarded to the party first entering an
appearance (s).

Where there were three respondents, and the appeal
was dismissed with costs, the Judicial Committee ordered
the deposit (300/.) to be rateably divided between
them (t).

The general rule to allow but one set of respondents' costs
will not be departed from in favour of a party who comes
forward as a separate respondent when the suit is already
substantially defended (u).

The costs of three counsel are very rarely allowed upon
taxation between party and party (z).

A set-off will be directed of any costs which the success-
ful party may have to pay against the general costs of the
appeal payable by the unsuccessful party (y). The party
ordered to pay costs in the Privy Council will not be allowed
to set off costs ordered to be paid him in the court below.
Adams v. Young, 20 N. S. W. Kep. (1899), p. 169, following
Russell v. Russell, (1898) A. C. 307.

The registrar has been directed to disallow on taxation
irrelevant matter inserted in the record (z). Where the
record is bulky, the cost of perusing only so much as is
applicable to the question to be argued and decided will

(r) Turner v. Cox, 8 Moo. 288 ; Prinsep and East India Company v.
Dyce Sombre and others (Prerog. Ct. Cant. 1856), 10 Moo. 300 ; Shah
Mukhun Loll v. Baboo Sree Kishen Singh (Calc. 1868), 12 Moo. I. A.
157.

(s) Woomatara Debia v. Kristo Kaminee Dossee (Calc. 1872), 18
Suth. W. R. C. R. 163.

(*) Lyall v. Jardine (Hong Kong, 1870), 7 Moo. (N. S.) at p. 133 ;
cf. Sribal Dei v. Kadar Nath (1901), 28 I. A. 188.

(u) Woomatara Debia v. Kristo Kaminee Dossee (Calc. 1872), 18
Suth. W. R. C. R. 163 ; 12 Beng. L. R. 170.

(x) Prinsep and East India Co, v. Dyce, 10 Moo. at 234, n. ; Castle
v. Torre, 2 Moo. pp. 141—148 ; Tewajee v. Trinibuk-jee, 3 Moo. I. A.
139.

(y) Rudapersad Singh, v. Ram Parmeswar (Bengal, 1882), 9 Calc.
797 ; Melbourne Tramway Co. v. Fitzroy (Victoria, 1901), A. C, at 174.

(z) Bishenmun Singh v. Land Mortgage Bank of India, Ltd.
(Bengal, 1884), L. R. 12 I. A. 7 ; Rajah of Pittapur v. Sri Rajah Row
Buchi Sittaya Garu (Madras, 1884), L. R. 12 I. A. 22 ; Peacock v.
Byjnauth (1891), L. R. 18 I. A. at 111 ; Raja Yarlagadda Case, 1900.

COSTS. 339

be allowed. Budri Xcram v. Sheokoer (Bengal, 1889),
L. R. 17 I. A. 1.

The direction of the Privy Council as to costs is embodied The Judicial
in their report to the Crown, and is made contingent upon ^^s^ *
His Majesty's approbation of the report. The direction is costs.
repeated in the Order in Council, though it is, strictly
speaking, a direction of the Committee and not of the
Crown (a). The Order of His Majesty in Council is sent
to the court from which the appeal was brought.

A party who has been ordered to pay costs is liable to the Liability
process provided for enforcing payment, and is also liable to to pay>
an action of debt for the amount, and this is the case even
where the proceeding of which he has been ordered to pay
the costs is merely collateral, and the principal suit is still
pending. Thus, in a suit between A. and B. in a colonial
court, certain property had been attached and sold as
belonging to B. C. intervened, claiming it as his own.
The original suit and intervention proceedings were brought
before the Privy Council on appeal. The Privy Council
referred it to a special arbitrator, to inquire whether the
property belonged to B. or to C. Upon his report they
ordered the proceeds to be paid to C., and directed that A.
should pay the costs of the inquiry ; the appeal in the main
suit between A. and B. remaining undetermined. It was
held that A. must pay the costs as ordered ; and that he
was liable to an action of debt for the amount. Hutchinson
v. Gillespie, 11 Ex. 798.

The decree of the Sovereign in Council is registered in Enforcing
the court appealed from, and by that court a copy may be order-
transmitted to the court first appealed from to carry into
execution with such directions as may be necessary. It is
only the costs of the appeal that can be recovered in the
Privy Council ; the costs of proceedings in the courts below
must, if allowed by the Privy Council, be recovered in those
courts ('•).

(a) See the terms of the provisions 3 & 4 Will. IV. c. 41, s. 15, and
6 & 7 Viet. c. 38, s. 12. Appendix A., p. 434.

22—2

340 THE PRACTICE OF THE PRIVY COUNCIL.

But by the Colonial Appeal Rules the colonial court
must execute any order as to costs made by the Judicial
Committee.

(26) The court shall conform with, and execute, any
Order which His Majesty in Council may think fit to
make on an appeal from a judgment of the court in like
manner as any original judgment of the court should
or might have been executed.

CHAPTEE XTV.

CONCERNING THE JUDGMENT OF THE COMMITTEE, AND OF
THE DECREE OF THE SOVEREIGN IN COUNCIL.

BY 3 & 4 Will. IV. c. 41, s. 3 (see Appendix A.), the Judgment
Judicial Committee are to make a report or recommenda- £fom^ittee
tion to the Sovereign for his decision thereon, on all appeals, delivered in
causes, and matters referred by him to them as theretofore ; °Pen court-
the nature of such report and recommendation is to be
stated in open court. It is the practice where there is a
question of law, inasmuch as the court is one of last resort,
to take time to consider, and after full communication with
all those who have been present to pronounce a written
judgment. A notice in such case must be given to the
parties to attend for the delivery of the judgment.

74. Where the Judicial Committee, after hearing Notice to
an appeal, decide to reserve their judgment thereon, ^rtlfixed f or
the Registrar of the Privy Council shall in due course delivery of
notify the parties who attended the hearing of the Judgment.
appeal by summons of the day appointed by the
Committee for the delivery of the judgment.

There has been hitherto only one statement of reasons One judg-
by one judge on behalf of the Committee. In this the ment>
practice of the Judicial Committee differed from that of
other courts. It arose out of the duty the Privy Councillor
owes to the Crown not to disclose his advice. The practice
was the subject of criticism at the Imperial Conference by
colonial representatives, who prefer to know the opinion of
the various judges, and weigh the opinions according to
their accredited merit, and it will probably be changed, and
dissentient judges will in the future be able to express their
opinion.

The court has sometimes stated the fact that it was not
unanimous, as, for instance, in Cowie v. Remfrey (1846), 5
Moo. at p. 251, and in Gorham's Case, where in the course

342

THE PRACTICE OF THE PRIVY COUNCIL.

Voices not
published.

'Decree
reversed
without
prejudice
to new appli-
cation.

Can

assess
damages.

Remission —

of the judgment it was stated that the Bishop of London
did not concur. And the Lord Chief Baron in the case of
Ridsdale v. Clifton (1877), 2 P. D. 276, claimed a right to
express his dissent from a judgment of the Board. This
was, however, contrary to Article 4 of the Order in Council
of February 20, 1627, and to the established practice,
which declared that no publication is to be made how the
particular opinions went (a).

Where the decree in the court appealed from is irregularly
made, the appeal may be allowed without prejudice to
another application being made to the court below, as where
in India in a suit concerning charities the court refused to
hear the Advocate-General (b).

Where the whole case is before the Committee, and there
appears no case made for taking fresh evidence, and the
judge below would have only those materials for a judgment
which are before their lordships, the Judicial Committee
will not decide the appeal on narrow grounds, but will care-
fully examine the whole of the proceedings and the evidence,
and pronounce what in their opinion should have been the
decision of the court below and endeavour to make the decree
which the court below ought to have made ; and will, when
necessary, assess damages (c). (See p. 351.)

The Judicial Committee avoid acting as a court of first
instance (d), and will remit the case, accompanied sometimes
with a direction that a party should be allowed to amend
his pleadings (e), or with an expression of opinion for the
guidance of the court below as to the point of law which
has to be decided (/). The jurisdiction of the Sovereign
in Council is no greater than that of the court from which
the appeal originally came. Thus, where the Court of

(a) Cf. The Report of Gorham's Case, by E. F. Moore, p. 458.

(6) The Att.-Gen, v. Brodie (Mad. 1846), 6 Moo. 12 ; cf. In re Whit-
field (Jersey, 1838), 2 Moo. 269 ; Maharajah Nitrasur Singh v. Baboo
Loll Singh (Calc. 1860), 8 Moo. I. A. at p. 220.

(c) Mudhem Mohun Doss v. Gokul Doss (N. W. P. 1866), 10 Moo.
I. A. at p. 575 ; Le Breton v. Ennis (Jersey, 1844), 4 Moo. at p. 331 ;
Brooke v. Kent (Prerog. Ct. 1840), 3 Moo. 344.

(d) Head v. Sanders (Arches Ct. 1842), 4 Moo. 197.

(e) Mohummud ZaJioor Ali Khan v. Mussumat Thakooranee Rutta
Koer (N. W. P. Agra, 1867), 11 Moo. I. A. 468.

(/) Le Gros v. Le Breton (Jersey, 1833), 2 Knapp, 181 ; Macrae v.
Goodman (Brit. Guiana, 1846), 5 Moo. 338; Devine v. Wilson (N. S. W.
1855), 10 Moo. 532 ; Le Feuvre v. Sullivan (Jersey, 1855), 10 Moo. at
p. 16.

THE JUDGMENT OF THE COMMITTEE, ETC. 948

Ontario could not conduct the sale or take possession of

land in Manitoba, since the judgment was invalid, it was

held that the Sovereign in Council as Appeal Court had no

more extensive powers (g). Occasionally their lordships with n decla-

will advise His Majesty to remit the case to the court ration.

below, with a declaration as to the rights of the parties (h),

while at the same time they will dismiss the appeal as against

any of the respondents who may have been improperly made

parties (i).

In granting new trials the Judicial Committee apply the New trials,
law in force in the particular possession from which the
appeal comes. Cf . Royal Mail Steam Packet Co. v. George and
Jlnuiday, (1900) A. C. p. 493. It follows that where the
English common law is in force, the rules laid down by the
House of Lords will, subject to any principles introduced by
statute which are inconsistent with those of the English
judicature rules, govern applications for new trials before
the Judicial Committee. The leading cases decided in the
House of Lords and Judicial Committee relating to the
granting of new trials will be found below (k). The con-
solidated laws of British Honduras prescribed that a new
trial must be applied for by notice within a specified period
after the trial. The Board held that it was bound by the
section : and in an appeal from a judgment entered after ver-
dict could not relax it, and could not consider any contention

(g) King v. Henderson (Can. 1898), 79 L. T. at 37.

(h) Chuoturya Run Murdun Syn v. Sahub Purhulad Syn (Calc.
1857), 7 Moo. I. A. at p. 53 ; Gopeekrist Gosain v. Gungapers and
Gosain (Calc. 1854), 6 Moo. I. A. 53.

(i) Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta
Koer (N. W. P. 1867), 11 Moo. I. A. 468.

(k) Misdirection, Bray v. Ford, (1896) A. C. 44 ; Jenoure v. Ddmege
(Jamaica, 1891), A. C. 73 ; Kingston Race Stand v. Mayor and Council
of Kingston, (1897) A. C. 509. Non- direction, Nevell v. Fine Art and
General Ins. Co., ibid. p. 76. Improper rejection of evidence, Manley
v. Palache (Jamaica, 1894), 73 L. T. 98. Against the weight of
evidence, Metropolitan Railway Co. v. Wright (1886), 11 A. C. 152,
ouncil of Municipality of Brisbanev. Martin (Queensland, 1894),
A. C. 249 ; Phillips v. Martin (1890, N. S. W.), 15 A. C. 193 ; Brown
v. Commrs. of Railways, ibid. 240. Where evidence on both sides is
properly submitted to jury, the verdict ought to stand, Commrs. of
Railways v. Brown (N. S. W. 1887), 13 A. C. 133. Contradictory
verdicts, Australasian Steam Nav. Co. v. W. Hovjard Smith (N. S. W.
1889), 14 A. C. 321. Whether there is any evidence for the jury is a
question for the judge : Metropolitan Railway v. Jackson (H. L. 1877),
3 A. C. 193.

344

THE PRACTICE OF THE PRIVY COUNCIL.

New trial.
Motion first
to court
below.

Judicial Com-
mittee may
enter judg-
ment on the
facts.

Misdirection.

directed to a new trial. George D. Emery Co. v. Wells,
(1906) A. C. 515.

The Judicial Committee will not by its judgment review
a verdict where the ground of appeal is that the verdict was
not warranted by the evidence or that the verdict was
wrong, unless the court below has been moved for a new
trial. Where the rules of the court permit, the Judicial
Committee in such case allow an appeal to be brought.
The party appealing should first exhaust the remedies which
the rules and practice of the court below prescribe (I). The
Judicial Committee will not recommend a new trial on
points raised for the first time before them, which may
possibly have been treated as agreed upon or too clear for
argument by the court below. Mackay v. Commerical Bank
of New Brunswick (1874) L. R. 5 P. C. 374.

There is nothing in the statutes to limit the right of the
Judicial Committee sitting as a Court of Appeal to enter
judgment on an application for a new trial, and where all
the facts are before them they will enter judgment instead
of directing a new trial. But if application for judgment
has not been made in the court below, the Judicial Committee
will not order it. An appeal was brought from the Court of
Appeal in New Zealand where the majority of the judges had
held that the verdict of a jury against the appellants in
the court below must stand, and dismissed the appellants'
motion to enter verdict and judgment for them, or in the
alternative for a new trial. The Board were of opinion that
the verdict was so unsatisfactory that it ought not to be
maintained ; but they refrained from entering judgment for
the appellants because that point was not submitted to the
Appellate Court in the colony. It appeared that that court
had powers enabling judgment to be entered according to
the evident justice of the case, but had not been pressed to
exercise them, and the Board followed the view of the dis-
senting judge by directing that a new trial should take place.
Clouston & Co., Ltd. v. Corry, (1906) A. C. p. 122.

A new trial will be ordered where a misdirection was

calculated materially to influence the verdict of the jury,

or where the Judicial Committee hold that the court

below has not weighed all the circumstances in evidence

70 Dagnini v. BeUotti (1881), 11 A. C. p. 601.

THE JUDGMENT OF THE COMMITTEE, ETC. 345

with sufficient accuracy to justify the verdict given, or if it
appears that the court below has not sufficiently inquired into
material facts.

The Judicial Committee will apply its own principles as Principle
to granting a new trial for misdirection when an appeal is aPP
brought to it against an order by the court below directing
a new trial upon that ground. It will reverse the order
unless there was substantial misdirection in the first court.
Blue and Descliamps v. Red Mountain Railway, (1909)
A. C. 361.

Nor will the Judicial Committee allow the respondents in
an appeal against an order for a new trial on the ground of
misdirection to rely on another misdirection to which they
had not excepted at the trial or in the notice of appeal, or
in oral argument before the Appellate Court in the colony.
White v. Victoria Timber Co., Ltd., (1910) A. C. p. 606.

Non-direction is only ground for a new trial when the Non-direc-
verdict is against the weight of evidence. G. W. R. of tlon>
Canada v. Braid (1863), 1 Moo. (N. S.) 102.

Where the question is one of fact and there is evidence on Evidence on
both sides properly submitted to the jury, the verdict of the b°5h ??j?f®
jury, if neither unreasonable nor unfair, once found, will be a jury.
allowed to stand (m). Where cross actions involving the
same questions of law and fact are separately tried with the
result that contradictory verdicts are obtained, if the
evidence at each trial is so fairly balanced that a jury might
reasonably find either way, both cases ought to be tried
again, not separately, but together (ri).

Before a new trial is granted for rejection of evidence, it Rejection of
must be shown that the evidence might have materially im.material
influenced the verdict (o). So where in an action tried
before a judge alone evidence is improperly admitted, a new
trial will not be granted if, rejecting that evidence, sufficient
remains to support the finding (p).

Where an order for a new trial is sought for, the judge of

(m) Commrs. for Railuxiys v. Brown, 13 A. C. 134.

(n) Australian Steam Navigation Co. v. Smith and Son* (1889), 14
A. C. 321.

(o) East India Co. v. Oditchurn Paul (Bengal, 1849), 7 Moo. 85 at
p. 100 ; cf. Doe d. Devine v. Wilson (N. S. W. 1855), 10 Moo. 502 at
p. 512.

(p) Mohur Sing v. Ghuriba (1870), 6 Beng. L. R. 495.

346

THE PRACTICE OF THE PRIVY COUNCIL.

Verdict
disapproved
by judge
below.

Verdict
against the
evidence.

Judicial
Committee
will generally
uphold find-
ings on fact.

the court below having disapproved of the verdict, the
Privy Council will incline to be guided by the opinion of
the judge, unless upon consideration of the evidence ifc is
satisfied that the verdict was right (q).

It is a settled rule that a verdict ought not to be disturbed
on the ground that it is against the evidence or the weight
of evidence, unless, to use the words of Lord Herschell in
Metropolitan Railway Co. v. Wright, 11 A. 0. 152, it was one
which a jury, viewing the whole of the evidence reasonably,
could not properly find (r). In order to be justified in
granting the new trial, the Judicial Committee must be
satisfied that the evidence so strongly preponderates as to
show that the jury have either wilfully disregarded the
evidence, or failed to understand or appreciate it. The Con-
necticut Mutual Life Insurance Co. of Hartford v. Moore (Can.
1881), 6 A. C. 644. Where there is evidence on both sides
properly submitted to the jury, the verdict of the jury once
found ought to stand (s). The Judicial Committee may restore
the verdict of a jury which has been reversed in the Appellate
Court of the colony. In a case where the Supreme Court of
Canada had set aside the verdict of a jury for the plaintiff on
the ground that there was no exact proof of the defendant's
negligence, the Board reversed the order on the ground that
there was sufficient evidence on which the jury could find.
Cf. Me Arthur v. Dominion Cartridge Co., (1905) A. C. 72.

The court below, which has had the advantage of seeing
the demeanour of the witnesses, is better able to judge as to
their credibility than the Court of Appeal. But if the
Court of Appeal sees cogent reason for saying that the
court below has taken a wrong view of the evidence, whether
due to local prejudice or any other reason, the case may be
sent back for further inquiry (t). The Judicial Committee
will therefore uphold the finding of the court below unless
they entertain an opinion, strong and clear, that the court

(q) Humphrey v. Nowland (N. S. W. 1862), 15 Moo. 343.

(r) Phillips v. Martin (N. S. W. 1890), 15 A. C. at p. 194 ; Brown
v. Commrs. for Railways (N. S. W. 1890), ibid, at p. 240 ; Council of
the Municipality of Brisbane v. Martin (Queensland, 1894), A. C. 249 ;
Cox v. English, Scottish and Australian Bank, Ltd., (1905) A. C. 108.

(s) Commrs. of Railways v. Brown (N. S. W. 1887), 13 A. C. 133.

(0 Santa Cana v. Ardevol (Gibraltar, 1830), 1 Knapp, 269 ; Canepa
v. Larios (Gibraltar, 1834), 2 Knapp, 276.

THE JUDGMENT OF THE COMMITTEE, ETC.

347

below was wrong (u). This is specially so where, as in a
question of boundaries, the finding depends upon local inves-
tigation and inquiry (x). The above rule does nob apply
where there has been miscarriage of justice, either by the
reception of or in the appreciation of evidence (y).

AVhere there have been concurrent findings of fact by Concurrent
•judges below who have been unanimous, the almost invariable Judgments of

courts Dfilow

rule of the Judicial Committee is, unless it is absolutely The invari
clear that some blunder or error has been made in the way able rule,
in which the facts have been dealt with, to uphold the
finding of the court below. The question before the
Judicial Committee is not, under such circumstances, what
conclusion they would have arrived at if the matter had
been before them for the first time, but whether it has been
established that the judges below were clearly wrong (z),

The rule was stated in a recent case thus : " It is incum-
bent on the appellant to adduce very clear proofs that there
is an error in the judgment appealed from. It is not
sufficient to allege that the judges in the court below have

(u) Chunder Monee Debia ChowdJworayn v. Munmokeenee Debia
(Calc. 1861), 8 Moo. I. A. at 489.

(x) Ram Gopal Roy v. Gordon Stuart (1872), 14 Moo. I. A. 453 ; cf.
Maharaj Kumar Baboo Ganeshwa Sing v. Durga Dutt (1871), 7 Bengal
L. R. at p. (>rs2.

(y) Richardson v. Madras Government (1864), 1 Suth. W. R. P. C.
at 49 ; Cheyt Ram v. Chowdhree Nowbut Ram (Agra, 1858), 5 Suth.
W. R. P. C. 3 ; 7 Moo. I. A. 207 ; Kripamoye Debia v. Romanath
Choiodhry (Calc. 1861), 2 Suth. W. R. P. C. 1 ; Mussumai Kripamoye
Debia v. Genia Gerischunder Lahore, (Calc. 1861), 8 Moo. I. A. 467 ;
Ghoolan Moortoozah Khan v. Government of Madras (1863), 9 Moo.
I. A. at 478.

(z) Allen v. Quebec Warehouse Co. (Quebec, 1886), 12 App. Cas. 104,
following Naragunty Lutchmeedavamah v. Vengama Naidoo (Madras,
1861), 9 Moo. I. A. at 87 ; but see Tayammaul v. Sashadialla Naiker
(Madras, 1865), 10 Moo. I. A. 429. " Concurrent findings on questions
of fact are not to be always binding on this Committee, since it is the
duty of the Appellate Court to weigh the evidence and probabilities
and form an independent judgment " (Lord Chelmsford, p. 436) ;
and cf. Owners of the P. Caland, H. L. (E)., (1893) A. C. per Lord
Herschell at p. 215, and per Lord Watson at p. 217 ; Mclntyre v.
McGavin, H. L. (E.), (1893) A. C. at 272 ; Tareeny Churn Bonnerjee v.
Maitland (Calc. 1867), 11 Moo. I. A. 338; Vencateswara lyan v.
Shekhari Varma (Madras, 1881), L. R. 8 I. A. 143 ; ibid. p. 150 ;
Thakur Harihar Buksh v. Thakur Umam Pershad (Oudh, 1886), L. R.
14 I. A. at 16 (reluctance to disturb concurrent findings as to family
custom) ; Ram Lai v. Saiyid Medhi Husain (Oudh, 1890), L. R. 17
I. A. at 71 ; Syed Ashgar Reza v. Syed Medhi Hossein Khan (Bengal
1892), L. R. 20 I. A. 38 (held not sufficient concurrence to prevent
further inquiry) ; Kunwar Singh v. Rani Kanwar, (1905) I. A. 33.
And see above, p. 152.

348 THE PRACTICE OF THE PRIVY COUNCIL.

approached the question from a wrong point of view, and
have failed to give weight to minute circumstances." Whitney
v. Joyce, 95 L. T. 74.

The rule will not be enforced in the same rigid manner
where the Appeal Court below affirms the judgment of the
lower court without giving reasons for such affirmance (a).

There must, however, be not a mere balance of testimony,
but so strong a preponderance of testimony against the find-
ing that they can confidently pronounce it to be wrong (b) ;
so that there is no evidence such as would warrant the con-
clusion arrived at (c). The grounds assigned must be definite
and explicit (d).

The rule is The Judicial Committee refuse to lay down any exclusive

not exclusive. ruie ag to appeals from judgments of the court below which
are rested entirely upon the facts ; they are, however, most
reluctant to come to a conclusion different from the judge
below merely on a balance of testimony where the judge has
had the opportunity of seeing and testing the conduct and
demeanour of the witnesses (e). The Judicial Committee,
being a court of last resort, will, however, examine the whole
evidence in a doubtful case, and form for itself an opinion
on the whole case (/).

Thus the Judicial Committee will disregard the concurrent
judgment of two lower courts, and decide the case upon the
evidence contained in the record, where the lower courts
have never dealt with the real question raised by the issues,
and have drawn wrong inferences from the evidence (g). And
they will, notwithstanding the weight due to the finding of
the court below, reverse or alter the sentence, or the amount
of damages, according to the merits (K).

(a) Guthrie v. Abool Mozufjer (Bengal, 1871), 14 Moo. I. A. at p. 63.
Of. Mowbray v. Drew (Victoria), (1893) A. C. at 301.

(b) Ranee Surrut Soonduree Dabea v. Kooer Poreshnarain Roy
(Calcutta, 1871), 16 Suth. W. R. P. C. at 11.

(d) Moung Tha Hnyeen v. Moung Pan Nyo, L. R. 27 I. A. 166.

(e) The Alice and the Princess Alice (1868), L. R. 2 P. C. p. 248 ;
following The Julia, 14 Moo. 210 ; cf. The Calabar, L. R. 2 P. C. 238.

(/) Modhoo Soodun Sundial v. Suroop Chunder Sirkar Chowdry
(Bengal, 1849), 4 Moo. I. A. 431.

(g) Moulvie Sayyud Uzhur Ali v. Mussumat Bebee Fatima (Bengal,
1869), 13 Moo. I. A. 232.

(h) Gahan v. Lafitte (St. Lucia, 1841-2), 3 Moo. at p. 397 ; Mudhoo
Soodun Sundial v. Suroop Chunder Sirkar Chowdry (Bengal, 1849),

THE JUDGMENT OF THE COMMITTEE, ETC. B49

The above rule of practice of the Judicial Committee does The Judicial

not relieve the court of its duty to weigh the evidence and Committee

... * . form indepen-

probabilities, and to form an independent judgment ; and dent opinion.

if on so doing they are of opinion that the evidence relied
on is so unsatisfactory that the decree appealed from cannot
be supported, the appeal will succeed (*). But as a general
rule, the mere fact that a part of the evidence in the suit has
not been considered by the lower court does not prevent
the rule applying when both courts have arrived at the same
result (k).

Absence of Explicit Findings. — Where in cross suits by an
heir against a widow for possession and mesne profits, and
by the widow against the heir to establish her right to dower,
the courts below, without ascertaining either the amount of
dower or of mesne profits, set one off against the other, the
Judicial Committee considered the want of explicit findings
to constitute exceptional circumstances such as to justify
them in refusing to follow their ordinary rule of practice (/).

Where questions of fact are mixed up with questions of
law, the rule may be relaxed (m).

In Srimati Rani Hurripria v. RuTdmini Debi(ri), the Admission of
judge of first instance had refused to admit a copy of a secondary
document in evidence, on the ground that in his opinion no
sufficient proof of search for or loss of the original had been firsUnstance.
given. The Judicial Committee said such a point was one
proper to be decided by the judge of first instance, and is
treated as depending very much on his discretion, which

4 Moo. I. A. at 433 ; 7 Suth. W. R. P. C. 73 ; Sundur Koomaree Debbea

lhadur Per shad Teirarree (Calcutta, 1858), 7 Moo. I. A. at 63 ;

•'tree Lutt v. Maharajah Hetnarain Sing (Calcutta, 1858), 7 Moo.

I. A. at 166.

(»') Tayammaul v. Sashachalla Naiker (Madras, 1865), 10 Moo. I. A.

(k) Ram Lai v. Saiyid Mehdi Husain (Oudh, 1890), L. R. 17 I. A.
p. 71.

(/) Mussumat Babee Bacheen v. Sheik Hamid Hossein (Bengal,

. 14 Moo. L A. at 386 ; see also Hay v. Gordon (Punjab, 1872),

18 Suth. W. R. 480, where the judgments were not truly concurrent,

the decree of court of first instance not being binding till confirmed

by the chief court, and where evidence had been improperly admitted ;

. L. K. 4 P. C. 337.

, v. Pavliem Sooryah Chetty (1877), I. L. R.
1 Madras, p. 258 ; L. R. 4 I. A. at 114 ; Venkate-sicara lyan v. Shekhari

1881), L. R. 8 I. A. at 150.
(») (Bengal, 1892), L. R. 19 I. A. at 81.

350

THE PRACTICE OF THE PRIVY COUNCIL.

The nature of
concurrence.

Interference
with judicial
discretion.

should not be overruled except in a very clear case of
miscarriage. There the view of the subordinate judge had
been supported by the Appellate Court.

As to the nature of the concurrence which will justify the
Judicial Committee in abiding by the decisions of the lower
courts, see SyedAshgar Reza v. Syed Medhi Hossein Khan (o).

Where the matter appealed is one of judicial discretion
such as the amount awarded for salvage, it is the settled
rule and one of great utility that the difference of estimate
ought to be considerable to justify the Judicial Committee
to review the decision (p). In the case of Master and
Owners of S.S. Baku Standard v. Master and Owners of
&S. Angele, (1904) A. C. 409, it was stated that it is not
the custom of the Committee to vary the decision of a
court below on a question of amount merely because they
are of opinion that if the case had come before them in
the first instance they might have awarded a smaller sum.
To establish a case for the exercise of such appellate juris-
diction, the appellant may show that the judge in estimating
the amount of remuneration has miscarried by allowing his
judgment to be influenced by something which ought not
to have influenced it ; or by giving undue, or failing to give
due, consideration to some circumstance fairly within his
consideration (q). Nautical assessors are generally sum-
moned to attend the Judicial Committee in Admiralty
appeals. These occasionally differ in opinion from those
who assisted in the court below. The rule of the Judicial
Committee requiring them to be satisfied beyond mere
doubt that the court below was wrong before reversing the
judgment removes the difficulty which might otherwise be
experienced.

In an Indian case the Judicial Committee declared that it
was reluctant to overrule the discretion of an Indian Court
in granting a declaratory decree. Thahurain Kunwar v.
Bhaiwa Indar Bahadur Singh (31 I. A. 67).

(o) (1893), L. R. 20 I. A. at p. 47.

(p) Cf. The De Bay, 8 App. Cas. 559 ; The Thomas Allen (1886),
12 App. Cas. p. 121, approving The Glenduror (1871), L. R. 3 P. C.
589 ; The Carrier Dove (1863), 2 Moo. (N. S.) 254 ; The Clarisse (1858)
12 Moo. 340 ; The Scindia (1866), L. R. 1 P. C. 241 ; The England
(1868), L. R. 2 P. C. 253.

(q) The Amerique (1874), L. R. 6 P. C. at p. 472.

THE JUDGMENT OF THE COMMITTEE, ETC. 351

The power of adding interest, from the finding to the time Adding
of judgment on appeal, to the amount of damages found
below is within the common law jurisdiction of the court (r).

Interest runs from the date of the judgment in a suit,
and may be recovered upon an Order of His Majesty in
Council dismissing the appeal (s).

In a case where a party was found entitled to damages, Assessing
but where the judges below could have little better means damages-
of fixing a fair amount of damages than the Privy Council,
the Judicial Committee, after declaring the principle upon
which they proceeded, named a gross sum, by way of damages,
to put an end to the litigation (t)^ and in Me Arthur v.
Cornwall the Judicial Committee dismissed an appeal from
a decree ordering a new trial as to damages, and at the same
time indicated the true measure of damages (u).

The Judicial Committee, unless clearly satisfied that the Practice in
court below has made a great mistake in the construction court below,
put upon their statutes, will not interfere with the judgment
of the colonial court as to its own forms and procedure (x).

Where the Privy Council is. as for instance in a criminal Recommen-
case, for any reason unable to do justice by the terms of the J**,1.01? ^
reference, but the Crown has power to do justice, the Privy Committee.
Council will sometimes, in giving judgment, make such
observations as may form the basis of a proper application
to the Crown by the parties (y).

If the Committee agree to recommend the Crown to vary Minutes of
the decree appealed from, or to make another decree in its Judgment.

(r) Bank of Australasia v. Breillat (N. S. W. 1847), 6 Moo. 152, 206
(secus, where writ of error and not appeal, ibid.) ; cf. Toulmin v.
Millar (1887), 12 App. Cas. 747 ; Allcock v. Hall (1891), 1 Q. B. 448,
C. A. ; Cox v. Hakes (1890), 15 App. Cas. 535. And see infra, p. 360.

(.5) Kirkland v. Modee Pestonjee Khooreejee (Bombay, 1843), 3 Moo.
I. A. 220 ; cf. (Imp. Stat.) 1 & 2 Viet. c. 110, ss. 17 and 18.

(t) Raja Burdakanth Roy v. Aluk Munjooree Dasaili and others
(Bengal, 1848), 4 Moo. I. A. 321.

(u) (Fiji, 1892) A. C. 75. In this case, which related to consoli-
dated appeals from the Supreme Court of Fiji, which had affirmed the
decree of the High Commissioner's Court for the Western Pacific at
Samoa, a treaty, dated June 14, 1889, had been entered into pending
the appeal between England, Germany, and the United States, under
which exclusive jurisdiction in all civil suits had been transferred to a
new Supreme Court in Samoa held under the treaty and not sub-
ordinate to Her Majesty in Council .

(x) Boston v. Lelitvre (Quebec, 1870), L. R. 3 P. C. at p. 163 ; Grant
v. .-Etna Insurance Co. (Lower Canada, 1862), 15 Moo. at p. 528.

(y) R. v. Murphy (X. S. VV. 1869), L. R. 2 P. C. 552.

352

THE PRACTICE OF THE PRIVY COUNCIL.

Respondent
seeking to
appear after
judgment.

Report of
Committee to
Sovereign.

stead, it is customary to require the parties to draw up the
minutes, upon the principles laid down in the judgment,
and these minutes being agreed to and signed by the counsel
or agents on both sides, are afterwards incorporated in the
report of the Committee, and form the basis of the Order in
Council which finally decides the appeal.

It has happened that a respondent or respondents against
whom all the orders for appearance have been taken out by
the appellant have applied (after the conclusion of the hear-
ing of an appeal but before the final Order in Council is
approved) to be permitted to come in at that late stage and
be heard. Bearing in mind that if such application were
granted the appellant might be put to the unexpected expense
of a double hearing, the Board have usually refused the relief
prayed for and directed the respondent or respondents to
pay the costs incurred by the application (2). There is no
rule entitling a respondent, after he has had notice of an
appeal pending, to have further notice that the record has
been transmitted, or that the appeal is set down for hearing
if he has not entered an appearance (a).

In another case, Maharajah Pertab Narain Singh v.
Mehanee Subhao Koer (1878), L. R. 5 I. A. 171, where the
report of the Judicial Committee had been finally approved
by Order in Council, the applicant, who had been a respon-
dent below, alleged that by an accident he had not been
represented in the hearing before the Judicial Committee
and asked for a re-hearing. The petition was dismissed,
but the Board in their report declared that if a new suit
should ever be brought in India in the matter of the appeal
in question, the determination of the Indian courts upon it
would be subject to appeal.

The reasons for their judgment set forth by the Board in
the Council Chamber are not inserted in the report to the
Sovereign. At the first Council held after the judgment
has been delivered, the report is submitted to the Sovereign
for approval.

(z) The Zemindar of Merangi v. Sri Raja Satrucharla Ramabadra
Razu (Madras, 1891), L. R. 18 L A. 55.

(a) LaUa Pershad and Others v. Sheikh Azzir-ud-din Ahmid (All.
1896), L. R. 24 I. A. 49 ; Ranee Sumomoyee v. Shoshee Mookhee
Burmonia (Bengal, 1868), 12 Moo. I. A. 257 ; and Harriss v. Brown
(Bengal,) P. C. AT., May 11, 1901.

THE JUDGMENT OF THE COMMITTEE, ETC. 353

Order in Council. — When the decision of the Board has Decisions
been reported to His Majesty and embodied in an Order in Qml*x^ed m
Council, it becomes the decree or order of the final Court of
Appeal (b). The Order in Council recites and approves the
report and gives judgment accordingly, and it is the duty
of every subordinate tribunal to whom the order is addressed
to carry it into execution (c). It was the ancient practice to
enrol the judgments and orders on appeal in the books of
the Privy Council along with matters of a purely political
nature, so that they were not accessible to persons interested
without danger of disclosing secrets. The statute 3 & 4 Decrees to be
Will. IV. c. 41, s. 16, provides that the orders or decrees enrolled-
made in pursuance of any recommendation of the Judicial
Committee in any matter of appeal from the judgment or
order of any court or judge shall be enrolled for safe custody
in such manner, and the same may be inspected and copies
thereof taken under such regulations, as His Majesty in
Council shall direct. This provision does not extend to
those other matters not strictly of a judicial character dealt
with under sect. 4 of that Act and discussed in Chapter VII.
of this book. The order is afterwards delivered from the
Council Office to the agent of the successful party, who
transmits it in due course to its place of destination. The
money deposited by the appellant as security for costs is
dealt with in accordance with the terms of the order, which
provides for its being either handed back to the appellant or
for the deduction from it first of the respondent's costs. If,
as sometimes occurs, the costs of the respondent exceed the
amount of the deposit, the deposit money is handed in its
entirety to the respondent, and he is left to recover the
balance in the colony appealed from according to the terms
of the final order.

In the absence of the original Order of the Sovereign in Copy of Order
Council which is issued to the successful party at the Council m Counci1-
Office for production to the court below, and is addressed to
the Governor of the dependency " and to all other persons
whom it may concern," a copy of the Order is admissible
evidence. Hurrish Chunder Ohowdry v. Srimati Kali
Soondari Debt (Bengal, 1882), L. R. 10 I. A. 4.

(6) Pitts v. La Fontaine (Constantinople, 1880), 6 App. Cas. 483.
(c) Pitts v. La Fontaine (Constantinople, 1880), 6 App. Cas. 484.

p.c. 23

354

THE PRACTICE OF THE PRIVY COUNCIL.

Decree by
consent.

Subordinate
tribunal to
enforce
decree.

In Colonial
Courts of
Admiralty

Finality of
decree,

Binding effect
of previous
decision.

Decree, ly Consent. — A decree is occasionally taken by
consent. In such a case no argument is required, but the
report to the Sovereign states that the decree is by consent.

Enforcement of Order in Council. — The court below is
bound to use its best endeavours to carry His Majesty's
decree as contained in the Order in Council into execution.
If there is any ambiguity therein, the judgment of the
Judicial Committee may be looked at for its interpreta-
tion (d). Should the subordinate tribunal neglect or refuse
to carry the decree into execution, a peremptory order will
be made (e). The petition for such order should be to His
Majesty in Council, and will be specially referred to the
Judicial Committee, who will order on whom it should be
served (/).

It sometimes happens that the Privy Council can do no
more than make a declaration of right. In such cases the
court which executes the decree must throw the declaration
into a mandatory form and give effect to it accordingly^).

In appeals under the Colonial Courts of Admiralty Act,
1890, the already full powers of the Sovereign in Council
and of the Judicial Committee of the Privy Council for
making and enforcing judgments, for punishing contempts,
for requiring the payment of money into court, or for any
other purpose, have been amplified (53 & 54 Yict. c. 27,
s. 6 (3)— (5) ). See p. 364.

Finality of Decisions as to Third Parties. — Since the law
as to the rights of property is based to a great extent on
decisions, the decisions of a final Court of Appeal become
elements in the composition of the law. It is, however,
difficult to say that they are as to third parties under all
circumstances and in all cases absolutely final, but they will
not be reopened without the very greatest hesitation. This
view of the finality of the decisions of the Privy Council

(d) Pitts v. La Fontaine, 6 App. Cas. p. 487.

(e) Ibid. p. 488; and see 3 & 4 Will. IV. c. 41, s. 21. Appendix A,
(/) See In re Rajah Vassareddy Lutchmeputty Naidoo (Madras,

1852), 5 Moo. I. A. 300 ; 8 Moo. at pp. 129, 136, where a peremptory
order was made. See also 3 & 4 Will. IV. c. 41, ss. 21 and 28 ; and
Hebbert v. Purchas (1872), L. R. 4 P. C. 301 (approved Mackonochie v.
Ld. Penzance (1881), 6 App. Cas. 460), where a clerk in holy orders
was suspended ab officio et a beneficio. In Admiralty, Barton v. Field
(1842), 4 Moo. 273 ; 2 Moo. p. 26, n. ; and 7 & 8 Viet. c. 69, ss. 11
and 12.

(g) Barlow v. Orde (Punjab, 1872), 18 Suth. W. R. C. R. 175.

THE JUDGMENT OF THE COMMITTEE, ETC. 355

does not affect in the same degree as in other cases decisions
in ecclesiastical causes where they depend upon questions of
historical research. Nor will the Judicial Committee neces-
sarily follow the dictum of a judge in delivering the judgment
of the Board in a previous case affecting the same subject-
matter. Cf. The Dominion of Canada v. The Province of
Ontario, (1 '.)!()) A. C. (14, where the Board did not follow a
dictum of Lord Watson in St. Catherine's, etc., Co. v. The
Queen, 14 A. C. (50. Where third parties are affected the
Privy Council are in any case " at liberty to examine the
reasons upon which that decision was arrived at, and if they
should find themselves forced to dissent from those reasons,
to decide upon their own view of the law (h). They will be
the more willing to follow this view if the earlier decision
was given ex parts " (i).

Where the appeal has been decided by English law, it is Laws to be
wrong to apply the Colonial Dutch law in the proceedings
taken in execution of the judgment (/). decree.

In the case of The Montreal Assurance Co. v. Amendment
M'Gittivray (k) both sides were desirous that some alteration ^ ^nfmftte
should be made in the form of the report on which Her after decree.
Majesty's Order had been passed. The defendants in the
Superior Court in Canada had appealed from the judgment
given for the plaintiff to the Court of Queen's Bench ; the court
confirmed the judgment in the court below. The defendants
then appealed to the Sovereign in Council. The Judicial
Committee in their report to the Queen recommended that
the judgment of the Court of Queen's Bench should be set
aside, but omitted either to advise that the judgment in the
Superior Court should be set aside, or to advise in what way
the Court of Queen's Bench should proceed. The latter
court merely filed the Order in Council, but declined to do
anything more. The report of the Judicial Committee was
accordingly amended by directing that the judgment of the
Superior Court should be reversed and the verdict of the
jury vacated, and that the cause should be sent back to

(h) Ridsdale v. Clifton (1877), 2 P. D. 306 ; Read v. Bishop of
Lincoln, (1892) A. C. p. 654. Cf. Tooth v. Power (N. S. W.), (1891)
A. C. at 292.

(0 Ibid.

(j) Lindsay v. Duff (Ceylon, 1862), 15 Moo. 452.

(k) (1859), 13 Moo. at p. 125.

23—2

356

THE PRACTICE OF THE PRIVY COUNCIL.

Revocation
of decree of
Sovereign.

Interpreta-
tion of judg-
ments.

the Superior Court with directions (/), and an Order in
Council was made embodying the amended report.

In another case, after Her Majesty's Order had been
passed, a vital irregularity in the proceedings (viz., the
omission by the appellant to give notice of the appeal to
some of the respondents) was discovered at the last moment,
and the registrar having reported this fact to the Privy
Council, their lordships reported to Her Majesty that the
Order should be revoked. The appeal then stood over for
further directions, and the appellant was ordered to serve a
personal notice of the appeal on each of the respondents who
had not appeared (vn). The indulgence extended in such
cases is owing to the natural desire prevailing to prevent
irremediable injustice being done by a court of last resortr
where, by some accident, without any blame, the party has
not been heard, and an order has been inadvertently made
as if the party had been heard (ri). The Judicial Committee
admitted there may be exceptional circumstances where a
case may be reheard, even after their advice has been acted
upon by the Sovereign in Council.

The Judicial Committee interpret the Order in Council
made upon their own judgment by the light of the terms to
be found in their judgment (0). So also the practice of the
court in a colony will not be permitted to prevail against the
construction which appears to be a natural one of a
judgment delivered by their lordships. Where the High
Court in India in execution of an Order in Council had

(I) See Order in Council made therein, ibid. p. 131.

(m) McLeary v. Hill and Others, cited and distinguished by Judicial
Committee in Ex parte Kistonauth Boy (Calcutta, 1869), 6 Moo. (N. S.)
at p. 367, and 12 Moo. I. A. 254, 362, in which the application of a
respondent for a rehearing was refused, because it was owing to
his default that the appeal was heard in his absence. See supra,
pp. 282 — 283, as to compelling respondents to appear.

(ri) Rajunder Narain Mae v. Bijai Govind Sing (Bengal, 1836), 1
Moo. 117 ; and Venkata Narasimha Appa Row v. The Court of Wards
(Madras, 1886), 11 App. Cas. 663 ; and see Maharajah Pertab Narain
Singh v. Maharanee Subhao Koer (Oudh, 1878), L. R. 5 I. A. p. 171,
where Rajunder Narain Rae v. Bijai Govind Sing (Bengal, 1836), 1
Moo. 117, and Ex parte Kistonauth Roy (Calc. 1869), L. R. 2 P. C. 274,
were approved. Proceedings will not be allowed to be reopened
merely by reason of discovery of fresh evidence. Srimantu Rajah
Tarldgaddu v. Srimantu Mullikarjuna, 14 Madras, 439. Cf. The
Singapore (1866), L. R. 1 P. C. 378.

(o) Harrison v. The Queen, 10 Moo. 225 ; Pitts v. La Fontaine,
6 A. C. 487.

THE JUDGMENT OF THE COMMITTEE, ETC. 857

interpreted an Order in a manner not intended, the Judicial
Committee, pending an appeal from the High Court decree,
expressed an opinion as to the intention of the Order. In
the Matter of the Petition of Yalaryaddu Par shed Nayeddu,
31 I. A. 64. And where a court instead of executing the
decree of the Sovereign in Council puts a construction upon
it which amounts to a re-hearing, the Judicial Committee
will give relief. Udivant Singh v. TokJian Singh (Bengal,
1901), L. R. 28 I. A. 57.

The Judicial Committee possesses the power to rectify Rectification
mistakes made in drawing up its own judgments (p). " An of i^g111611^-
order once made — that is, a report submitted to Her Majesty
and adopted by being made an Order in Council — is final and
cannot be altered." But if by misprision in embodying the
judgments errors have been introduced, His Majesty in
Council, as well as the House of Lords, " possess, by common
law, the same power which the Courts of Record and Statute
have of rectifying mistakes which have crept in." In the
elaborate judgment delivered by Lord Brougham in that
case, he says : " With the exception of one case in 1669, of
doubtful authority here, and another in Parliament of still
less weight in 1642, ... at a time when the government
was in an unsettled state, no instance, it is believed, can be
produced of a re-hearing upon the whole case, and an entire
alteration of the judgment once pronounced." The above
case had been heard ex parte, the appellant not having
appeared. The judgment of the Judicial Committee had
dismissed the appeal and affirmed the judgment appealed
from. This form of judgment, in the circumstances, was
incorrect, inasmuch as it should not have affirmed the
judgment. The order of the Judicial Committee permitting
the case to be re-heard stated that the judgment only meant
that the appeal was dismissed, and they allowed the appellant
to be heard notwithstanding the dismissal — that is, they
restored the appeal (q).

The Privy Council being a court of the last resort, it is Re-hearing,
not considered expedient that a cause once fully heard and
determined by them should be permitted to be discussed

(p) Rajunder Narain Roe v. Bijai Govind Sing (Bengal, 1836), 1
Moo. 126 ; 2 Moo. I. A. 781.

(q) 1 Moo. p. 141, and the order set out at p. 142.

358 THE PRACTICE OF THE PRIVY COUNCIL.

again before them ; although in a new case they will
reconsider points decided by themselves in other cases (r).

The Judicial Committee will, however, interpret the
Order in Council made upon their judgment and report, and
if any extraordinary terms are used therein which are not to
be found in their judgment they will construe it accordingly,
and if any unjust demand has been made in pursuance of
such terms such party making them may be condemned in
costs (s).

The practice as to re-hearing was fully considered in
Venlmta Narasimha Appa Roiv v. The Court of Wards (t),
where the doctrine laid down by Lord Brougham was
approved in a judgment delivered by Lord Watson. The
Judicial Committee for the purposes of their decision
assumed that a case of relevant new matter had been made
out. The doctrine so laid down, and now approved, was
that it is unquestionably the strict rule that no cause in
the court can be re-heard, and that an order once made,
that is, a report submitted to His Majesty, and adopted by
being made an Order in Council, is final, and cannot be
Mistakes in altered. Whatever, therefore, has been really determined by
the court must stand, there being no power of re-hearing for
the purpose of changing the judgment pronounced. The
Courts of Equity may correct the decrees made while they
are in minutes ; when they are complete they can only vary
them by re-hearing ; and when they are signed and enrolled
they can no longer be re-heard, but they must be altered, if
at all, by appeal. The courts of law, after the term in which
the judgments are given, can only alter them so as to correct
misprisions, a power given by the Statutes of Amendment.
The privilege if allowed is an indulgence, not a right, and is
extended to prevent irremediable injustice being done, where
by accident a party has not been heard.

In Srimantu Rajah Yarlagaddu Durga v. Srimaniu Mulli-

(r) Kielley v. Carson (Newfoundland, 1842), 4 Moo. at p. 91, where
Beaumont v. Barrett (Jamaica, 1836), 1 Moo. 59, and Burdett v. Abbott
(1811), 14 East, 137, are examined; see also Lindo v. Barrett (Van
Dieman's Land, 1858), 9 Moo. 456, and Fenton v. Hampton, 11 Moo.
347, 396, where Kielley v. Carson is reviewed and upheld. And
where the case had been heard ex parte an order was made before
judgment for rehearing. Bahadur Singh's Case, July 4, 1901.

(s) Harrison v. The Queen, 10 Moo. 225.

(l) 11 A. C. at p. 662 ; 10 Mad. 73, under title In re Appa Rao.

THE JUDGMENT OF THE COMMITTEE, ETC. 359

kar/itna, Lord Watson said a re-hearing of an appeal decided
by the Judicial Committee and followed by the Order of the
Sovereign in Council could only be granted in cases referred
to in the above decision (In re Appa Rao), "and in the
event of some misprision having occurred, as, for instance,
the terms of the decree adjudicating something which had
not been, in the view of their lordships' Board, decided, or
which they had not had the means of deciding, or where the
decree did not carry out the terms of the judgment " (u). The
House of Lords, however, have gone a step further, and have
corrected mistakes introduced through inadvertence in the
details of judgments, or have supplied manifest defects in
order to enable the decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies (x).
The Archives of the Privy Council possess precedents where
the Sovereign in Council has, after the Order in Council has
been passed, corrected by the issue of a new Order in
Council manifest inaccuracies which have inadvertently crept
into the decree of the Sovereign (y).

In the ecclesiastical cause of Habbert v. Purchas (z),
before the report of the Judicial Committee had been made Be-hearing
and approved, the Judicial Committee refused a re-hearing, r
although the matter was not resjudicata, the Board thinking
that great public mischief would arise if any doubt was
thrown on the finality of its decisions ; the petition for a
re-hearing was addressed to Her Majesty in Council and was
specially referred to the Judicial Committee, who declined
to entertain it. In the above case the appeal had been heard
ex parte (a).

When an order directing the appellant to pay money into Variation of
court was made by the Privy Council in ignorance of the
fact that an order to the same effect had already been made

(u) I. L. R. 14 Madras (1891), 439.

(x) I Moo. 117, 126 et seq.

(y) Apap v. Strickland (Malta, 1882), 7 A. C. 156 ; and see Ravenna
Chitty's Case, P. C. Arch. 1883, where the inaccuracy in a date was
discovered after the judgment but before the issue of the Sovereign's
decree.

(z) L. R. 3 P. C. 664.

(a) See also in Mussumat Ranee Surno Moyee v. Shooshee Mokhee
Burmonia (Calcutta, 1869), 6 Moo. (N. S.) 360.

360

THE PRACTICE OF THE PRIVY COUNCIL.

Money paid
pending
appeal bears
interest.

When interest
not payable.

Refusal
to carry
Sovereign's
decree into
execution.

by the High Court in India and acted upon by the appellant,
their lordships, on ascertaining the true facts of the
case, varied their order. Rajah Deedar Hossein v. Ranee
Zuhorrunissa, 2 Moo. I. A. 441.

The Committee, in recommending the reversal of a decree
of the court below for the payment of a sum of money which
has been executed pending appeal, will direct the repayment
of the money, with interest. The lower court, in executing
such a decree made on appeal, should enforce the payment
of interest on the sum so paid, even where interest is not
mentioned in the decree ; the courts, from the lowest to the
highest, being considered, as it were, an aggregate authority,
by whose acts justice must be fully done, which would not
be the case unless interest were allowed (b).

But the Board's decree will not direct interest to be paid
upon a sum of money claimed by the plaintiff where interest
was not asked for in the original action, and will dis-
allow it if the court below orders payment. Thus where a
decree of the Court of Appeal, affirmed by an Order in
Council, had ordered the repayment of money received by
the appellant in excess of his salary, but was silent as to
interest on the sum, it was held that as the Order in
Council intentionally omitted a direction to pay interest,
the discretion of the court below in making an order to pay
interest should be overruled. No claim for interest was
made at the beginning of the action, and it should be
charged only on the amount decreed from the date of the
decree of the Court of Appeal. Burland v. Earle, (1905)
A. C. 570.

In the case of Rodger, etc. the appellant obtained leave to
appeal from the refusal of the court below to issue execution
for interest upon the amount of the judgment money paid into
court by the appellant as the condition of his being allowed
to appeal, and presented a petition to the Privy Council
praying that the matter should be referred to the Judicial
Committee. The Privy Council, however, were of opinion
that it was a matter for a supplementary appeal (7 Moo.

(6) Rodger v. Comptoir d'Escompte de Paris (Hong Kong, 1871),
7 Moo. (N. S.) at p. 332 ; see also Gopee Kissen Gossamee v. Brindabun
Chunder Sircar (Bengal, 1872), 19 Suth. W. R. C. R. 41.

THE JUDGMENT OF THE COMMITTEE, ETC. 361

(N. S.) 320). The Judicial Committee held that the court Supplemental
below having to execute and cany into effect the judgment
of the Sovereign has power to order payment of interest ;
as otherwise the successful appellant who had to pay into
court the amount of the judgment as a condition of appeal-
ing would not be restored to all he had lost by reason of the
judgment reversed.

PART m.

THE PRACTICE IN APPEALS TO THE
SOVEREIGN IN COUNCIL IN ADMI-
RALTY, PRIZE COURT AND ECCLESI-
ASTICAL MATTERS.

CHAPTER XV.

ADMIRALTY APPEALS.

Appellate
jurisdiction
of Judicial
Committee.

Court exer-
cising juris-
diction of
High Court
of Admiralty.

Transfer of
appeals.

Prize Courts.

Admiralty
matters where
appeal to
Sovereign in
Council.

THE appellate jurisdiction formerly vested in the Court of
Delegates and the Commissioners of Prize, and which, on the
constitution of the Judicial Committee in 1833, was trans-
ferred to that body (#), has of late years undergone a
change. The jurisdiction of the High Court of Admiralty
is now vested in the Admiralty Division of the High Court
of Justice. Appeals which formerly lay to the Privy
Council now go (except in cases of Prize) (b) to the Court of
Appeal and thence to the House of Lords. This applies to
appeals from the High Court of Justice in Ireland as well
as in England (c).

Appeals lie to the Sovereign in Council from all Prize
Courts, whether at home or abroad (d).

In Admiralty matters appeals still lie to the Sovereign in
Council from the Court of Admiralty of the Cinque Ports (e),
from the Royal Courts of Jersey and Guernsey in their Ad-
miralty jurisdiction, from the Staff of Government Division

(a) Cf. 2 & 3 Will. IV. c. 92, and 3 & 4 Will. IV. c. 41.
(6) 54 & 55 Viet. c. 53, s. 4.

(d) 27 & 28 Viet. c. 25, ss. 5 and 6, and 54 & 55 Viet. c. 53.

(e) The Clarisse (1856), Swabey, 129; 12 Moo. 340; cf. Lord,
Warden of Cinque Ports v. Eex (1831), 2 Hag. Adm. at 447.

ADMIRALTY APPEALS.

363

of the Isle of Man judiciary in its appellate Admiralty
jurisdiction, and from Colonial Courts of Admiralty (/).

The English Admiralty jurisdiction abroad was, as from Colonial
July 1, 1891, vested in every court in a British pos-
session declared, in pursuance of the Colonial Courts of
Admiralty Act, 1890, to be a Colonial Court of Admiralty ;
or, where no such declaration is in force in the possession,
in the court which possesses in such possession unlimited
civil jurisdiction (g). The jurisdiction is to be exercised
over like places, persons, matters, and things, and to as full
an extent as in the High Court of England (ibid. s. 2 (2) ).

A Colonial Court of Admiralty is to have the more Jurisdiction
limited jurisdiction conferred on a Vice-Admiralty Court
by any Act as to Prize or Slave Trade, and not the jurisdic- matters,
thereby conferred exclusively on the High Court of Admiralty
or the High Court of Justice. Unless duly authorised, the
Colonial Court is not to exercise any jurisdiction in relation
to Prize (ibid. s. 2 (3) ).

All enactments relating to appeals to His Majesty in Council Enactments
or to the powers of His Majesty in Council, or the Judicial
Committee in relation to those appeals, are to apply to appeals matters.
under the Act. See sub-sect. 5 of sect. 6, which provides
as to appeals. Local rules of court approved by His Majesty
are to have force as part of the Act (s. 7). The provisions
of the Act with respect to appeals to His Majesty in Council
are as follows :

5. Subject to rules of court under this Act, judgments of Local Admi-
a court in a British possession given or made in the exercise ralty aPPeal-
of the jurisdiction conferred on it by this Act, shall be
subject to the like local appeal, if any, as judgments of the
court in the exercise of its ordinary civil jurisdiction, and
the court having cognizance of such appeal shall for the
purpose thereof possess all the jurisdiction by this Act
conferred upon a Colonial Court of Admiralty.

G. — (1.) The appeal from a judgment of any court in a Admiralty
British possession in the exercise of the jurisdiction conferred ^^reign^
by this Act (h), either where there is as of right no local Council.

(/) Cf. ss. 17, 9 and 6 of the Colonial Courts of Admiralty Act, 1890
(53 & 54 Viet. c. 27).

(g) 53 & 54 Viet. c. 27, s. 2, and s. 16 (1).

(h) By sect. 2 (3) (b), a Colonial Court of Admiralty is to have juris-
diction under the Slave Trade Act, 1873. By sect. 21 of that Act an

364 THE PRACTICE OF THE PRIVY COUNCIL.

appeal or after a decision on local appeal, lies to Her
Majesty the Queen in Council.

Conditions. (2) Save as may be otherwise specially allowed (k) in a

particular case by Her Majesty the Queen in Council, an
appeal under this section shall not be allowed —

(a) from any judgment not having the effect of a

definitive judgment unless the court appealed
from has given leave for such appeal, nor

(b) from any judgment unless the petition of appeal

has been lodged within the time prescribed by
rules (Z), or if no time is prescribed within six
months from the date (in) of the judgment
appealed against, or if leave to appeal has been
given then from the date of such leave,
(3) For the purpose of appeals under this Act, Her
Majesty the Queen in Council and the Judicial Committee
of the Privy Council shall, subject to rules under this
section, have all such powers for making and enforcing
judgments, whether interlocutory or final, for punishing con-
tempts, for requiring the payment of money into court, or for

appeal is given to the Treasury from any decree, order, or declaration
which is made by any British Slave Court in pursuance of that Act,
and involves the payment by the Treasury of any bounty, costs,
expenses, compensation, damages, or other moneys in like manner as
if they were parties to the proceeding in which such decree, order,
or declaration was made. See sect. 30 of the Slave Trade Act.

(k) This removes a hardship. In 5 Geo. IV. c. 113 (incorporated
with the Slave Trade Act, 1873), conditions of appeal had been abso-
lutely introduced by statute. Cf. Logan v. Burslem (Sierra Leone,
1842), 4 Moo. 296, where the Judicial Committee held they " had no
power to dispense with the enactment." For circumstances in which
the time may be extended, cf. Cassanova v. The Queen (Sierra Leone,
1866), 3 Moo. (N. S.) 484 ; The Aquila (St. Helena, 1849), 6 Moo. 102.
Foreigners as well as British subjects are equally bound by the time
limit, it being the law of the forum. Logan v. Burslem, supra.

(I) This enactment makes it clear that the asserting or interposing
the appeal is not referred to. The time within which the appeal is to
be asserted is fixed by the local rules. In appeals from Colonial
Courts of Admiralty, which are courts of civil jurisdiction exercising
the jurisdiction as such under this Act, the appeal in the Privy
Council follows the practice in civil cases, and the petition of appeal
is lodged with the Registrar of the Privy Council instead of being
lodged with the King's Registrar in the Admiralty Division of the High
Court, as was the old practice, and as is still the rule in Prize cases.

(m) " From the date " means the date the judgment is given, not
when drawn up. The Brinhilda (1881), 45 L. T. (N. S.) 389. See The
Eicardo Schmidt (1866), L. R. 1 P. C. 115, The Judicial Committee
Rules, however, now fix a different limit (see p. 278), and probably
would be followed.

ADMIRALTY APPEALS. 365

any other purpose, as may be necessary, or as were possessed Enforcing
by the High Court of Delegates before the passing of the Judgment.
Act (n) transferring the powers of such court to Her
Majesty in Council, or as are for the time being possessed
by the High Court in England or by the court appealed
from in relation to the like matters as those forming the
subject of appeals under this Act.

(4) All Orders of the Queen in Council or the Judicial
Committee of the Privy Council for the purposes aforesaid
or otherwise in relation to appeals under this Act shall have
full effect throughout Her Majesty's dominions, and in all
places where Her Majesty has jurisdiction (o).

(5) This section shall be in addition to and not in deroga-
tion of the authority (p) of Her Majesty in Council or the
Judicial Committee of the Privy Council arising otherwise
than under this Act, and all enactments relating to appeals
to Her Majesty in Council or to the powers of Her Majesty
in Council or the Judicial Committee of the Privy Council
in relation to those appeals, whether for making rules (q)
and orders or otherwise, shall extend, save as otherwise
directed by Her Majesty in Council, to appeals to Her
Majesty in Council under this Act.

The operation of the Colonial Courts of Admiralty Act Old rules as
was delayed in New South Wales, Victoria, St. Helena, and f £0^?^
British Honduras, but by Order in Council of May 4, 1911, Admiralty
the Act is brought into force as from July 1, 1911, in these Courts no
four colonies ; and thus appeals from Vice-Admiralty Courts force* *
are now, except possibly from India (see infra, p. 370),
altogether abolished. Until new rules under the Act of
1890 have been approved by the Sovereign in Council (s. 7),
the rules in operation at the passing of the Act governing
the steps to be taken in the court below are to remain in
force (s. 16 (3)) ; so far as such rules are inapplicable or do
not extend, the rules of court for the exercise by the court
of its ordinary jurisdiction shall have effect (ibid.'). In

(TI) The 2 & 3 Will. IV. c. 92.

(o) See Foreign Jurisdiction Act, 1890, and cf. the British Settle-
ments Act, 1887.

(p) See further, 3 & 4 Will. IV. c. 41, ss. 21, 28. App. A., p. 427, ff.

(q) The power under 6 & 1 Viet. c. 38, s. 15, by which the Judicial
Committee made rules as to practice in appeals from Admiralty and
Vice- Admiralty Courts is repealed.

366

THE PRACTICE OF THE PRIVY COUNCIL.

Rules of 1865
now apply to
Ecclesiastical
appeals only.

Limit of
appeal.

Rules for
appeals from
Colonial
Courts of
Admiralty.

practically all the courts of the colonies and foreign juris-
dictions which are invested with Admiralty jurisdiction
rules have now been passed regulating the conduct of appeals
in the court from which it is brought. In most cases the
rules follow the form of the Rules of 1883, which had general
application to appeals from Vice- Admiralty Courts, and are
set out below.

With regard to the steps to be taken in the appeal when
it arrives in England, the rules of practice introduced by
the Order in Council of 1853 never applied to Vice-
Admiralty or Ecclesiastical appeals ; certain other rules
appended to an Order in Council, dated December 11, 1865,
were made applicable to these matters under the Judicial
Committee Act, 1843. (See p. 374, ff.) But as the Vice-
Admiralty Courts are now abolished these rules now only
govern the procedure and the steps to be taken in the Privy
Council in Prize and Ecclesiastical appeals. They do not
apply to appeals coming from Colonial Courts of Admiralty,
which will follow in England the procedure indicated in
appeals from the courts in their civil jurisdiction. (See
Chapters VIII.— XIII.)

The appeal to the Sovereign under the Colonial Courts of
Admiralty Act, 1890, lies only from a definitive judgment
unless the court below gives leave. This accords with the
old practice of the Admiralty Court. The consequence is
that the power is reserved of appealing at the same time
from all grievances that have been done previously or
inflicted in the suit by the judge from whom the appeal is
brought. The Sally, 2 Rob. 227. The Judicial Committee
Rules as to the printing of the record and lodging the
petition of appeal must be followed. They are rules pre-
scribing the time within sect. G (2) (b) of the Colonial
Courts of Admiralty Act.

Local Rules have been made and approved by Order in
Council under sect. 7 of the Colonial Courts of Admiralty
Act in the following possessions : Gibraltar, Canada,
Jamaica, Newfoundland, Straits Settlements, Fiji, and
Queensland.

In the case of the Exchequer Court of Canada and the
Supreme Court of Jamaica and Fiji, the rules which
govern the procedure of appeal to the Privy Council in

ADMIRALTY APPEALS. 367

civil cases are applied also to Admiralty appeals. In the
other colonies special rules are provided for the steps to be
taken in the Admiralty appeals in the colonial court. Save
in the case of Gibraltar, which is dealt with below, these rules
follow the form of those that were in use for Vice- Admiralty
Courts under the Order in Council of 1883. (See p. 368.)

The Exchequer Court of Canada, being a court of Exchequer
" unlimited civil jurisdiction " as defined by the Colonial Sour^of
Courts of Admiralty Act, is within Canada a Colonial Court
of Admiralty, and as a Court of Admiralty within Canada
has and exercises all the jurisdiction, powers, and authority
conferred by the Colonial Courts of Admiralty Act, 1890,
and the Admiralty Act, 1891 (Dom.). See 54 & 55 Viet.
(Dom.) (1891), c. 29, s. 3. Cf. Boiv, McLachlan & Co. v.
Ship Camosun, (1909) A. C. 597.

By sect. 14 an appeal lies to the Exchequer Court from
any final judgment, decree, or order of any local judge in
Admiralty. An appeal may, however, be made direct to
the Supreme Court of Canada from any such judgment, etc.,
of a local judge, subject to the provisions of the Exchequer
Court Act regarding appeals. An appeal of right lies from
the Canadian Supreme Court under the same section from a
judgment pronounced in an appeal thereto from a decree of a
Colonial Court of Admiralty ; and special leave need not
be obtained from the Privy Council, as is the case with
other appeals from the Supreme Court. Richelieu and
Ontario Navigation Co. v. Owners of S.S. Breton, (1907)
A. C. 112. By sect. 17 of the Dominion Act, until other-
wise provided by the Governor-General in Council, the
following provinces shall be constituted Admiralty dis-
tricts : — (a) the province of Quebec with a registry at the
city of Quebec ; (b) the province of Nova Scotia with a
registry at Halifax ; (c) the province of New Brunswick
with a registry at St. John; (d) the province of Prince
Edward Island with a registry at Charlottetown ; and (e)
the province of British Columbia with a registry at Victoria ;
and by sect. 18, there shall be a registry of the Exchequer
Court on its Admiralty side at Torouto, and the Governor
in Council may from time to time fix the limits of such
registry, which shall be known as the " Toronto Admiralty
District."

368

THE PRACTICE OF THE PRIVY COUNCIL.

Rules of 1883
repealed.

No rules in
place thereof.

The Canada Order in Council, March 15, 1893, provides
rules regulating procedure and practice in the Exchequer
Court of Canada in its Admiralty jurisdiction, and by
rule 230 repeals the rules for the Vice- Admiralty Courts,
1883.

Rule No. 228 of those appended to the Order in Council
provides : " In all cases not provided for by these rules,
the practice for the time being in force in respect to
Admiralty proceedings in the High Court of Justice in
England shall be followed."

Inasmuch as no one of the rules of the High Court of
Justice applies to appeals to the Privy Council, and the Order
in Council does not provide any substitute for the rules 150
— 155 of the Eules of 1883 as to the proceedings to be taken
in the court appealed from on appeals to the King in
Council, the rules governing procedure in appeals in civil
cases (semlle) apply also to appeals in Admiralty cases.

The Rules of 1883, which form the model of the rules
made under the Act of 1890 for governing the procedure
in the court below in appeals from a Colonial Court of
Admiralty to the Privy Council, and which apply to such
appeals where no special rules have been made, are as follows :

Notice of
appeal.

COLONIAL RULES IN ADMIEALTY APPEALS.

A party desiring to appeal shall within one month from
the date of the decree or order appealed from, file a notice (s)

Form of
notice of
appeal.

(s) Form of Notice of Appeal (No. 51) under Rule

In the Colonial Court of Admiralty of

[Title of Action.]

Take notice that I, A. B., plaintiff [or defendant], appeal from the
decree [or order] of the Judge of the said Court made the day

Dated the day of

(Signed) A. B., Plaintiff.

Defendant.

Where neglect is made to interpose the notice of appeal in time, if
leave be granted by the Judicial Committee, it may be only on terms
such as payment of costs. Queen v. Belcher (1849), 6 Moo. 471.
Ignorance of the rule is not sufficient excuse for non-compliance and
will not entitle the appellant to be let in to appeal. The Queen v.
Diaz (The Aquila) (St. Helena, 1849), 6 Moo. 102 ; and see Lindo v.
The King (Sierra Leone, 1836), 1 Moo. 3 ; and Cremidi v. Parker
(1857), 11 Moo. 79.

ADMIRALTY APPEALS. 369

of appeal and give bail (t) in such sum, not exceeding 300/.,
as the judge may order, to answer the costs of the appeal.

Notwithstanding the filing of the notice of appeal, the
judge may at any time before the sendee of the inhibition
proceed to carry the decree or order appealed from into
effect, provided that the party in whose favour it has been
made gives bail to abide the event of the appeal, and Bail,
to answer the costs thereof in such sum as the judge may
order.

An appellant desiring to prosecute his appeal is to cause Inhibition,

the registrar to be served with an inhibition and citation, Cltatlo.n> or

, „ 'xi ..i. monition.

and a monition for process, or is to take such other

steps as may be required by the practice of the Appellate
Court.

On service of the inhibition and citation all proceedings Stay.
in the action will be stayed.

On service of the monition for process the registrar shall Process,
forthwith prepare the process at the expense of the party
ordering the same.

The process which shall consist of a copy of all the Transmission
proceedings in the action shall be signed by the registrar, of Process-
and sealed with the seal of the court, and transmitted by
the registrar to the registrar of the Appellate Court.

An Order in Council of 22nd April, 1910, prescribes the Admiralty

following rules for the Supreme Court of Gibraltar in its JPP6^8 from
. . Gibraltar.

Admiralty jurisdiction : —

In Ecclesiastical and Admiralty cases the party who is cited to To deny
appear, if he denies the right to appeal, ought to appear under protest, right of
and not absolutely. Sherwill v. The King (Gib. 1836), 2 Moo. 1 ; appeal, re-
Loughnan v. Haji Joosub Bhulladina (The Hydroos) (Bombay, 1851), spondent
7 Moo. 373 ; Shire v. Shire (Mauritius, 1845), 5 Moo. 81 ; Casement v. should appear
Fulton (Calc. 1845), 5 Moo. 130. So if a party is cited as a resident under protest,
within the jurisdiction, and appears and pleads without objection, he
cannot afterwards put that fact in issue. Chichester v. Donegal, 6
Madd. 275. If he appears absolutely and only objects by his case,
and by his counsel at the hearing, or only objects when the appeal is
ready for hearing, and actually entered in the paper, this conduct will
affect the question of costs ; but it does not appear that it will prevent
the Judicial Committee from entertaining his objection, especially if
it be to the effect that the appeal has been perempted, or that the
leave granted was a nullity. Loughnan v. Haji Joosub Bhulladina
(The Hydroos), 7 Moo. 373 ; Retemeyer v. Obermulkr (Berbice, 1838),
2 Moo. 93 ; and see Pisani v. Att.-Gen. of Gibraltar (1874), L. R. 5
P. C. at p. 525.

(t) Where bail has been given in the court below in pursuance of
this rule, the Privy Council may dispense with a requirement to give
additional bail Hunter v. SS. Heaketh, (1891) A. C. 628.

p.c. 24

370

THE PRACTICE OF THE PRIVY COUNCIL.

Colonial
Courts of
Admiralty in
India.

(1) A party desiring to appeal to His Majesty in Council
from a judgment of the court shall, within one month from
the date of such judgment, file in the said court a notice of
appeal, if the said judgment is a definite judgment, and a
petition for leave to appeal if the said judgment is a judg-
ment not having the effect of a definite judgment, and shall
serve the opposite party with a copy of such notice or
petition.

(2) A party desiring to appeal to His Majesty in Council
from a definitive judgment of the court, or having obtained
leave to appeal to His Majesty in Council from a judgment
not having the effect of a definitive judgment, shall, within a
period to be fixed by the court, but not exceeding three
months from the notice of appeal, or from the obtaining of
leave to appeal, as the case may be, enter into good and
sufficient security to the satisfaction of the court, in a sum
not exceeding 300Z. for the due prosecution of the appeal
and the payment of all such costs as may thereafter become
payable to the respondent, and shall without delay take all
necessary steps for procuring the preparation of the record
of proceedings and the dispatch thereof to England.

Then follow rules for the stay of execution, the prepara-
tion of the record, the consolidation of appeals, and the with-
drawal or dismissal of an appeal which agree with those in
the Colonial Appeal Eules (Chap. II., supra). And finally
power is given to the court to enlarge or abridge the time
appointed by the rules or fixed by any order enlarging time
on such terms, if any, as the justice of the case may
require.

Admiralty Appeals from India. — The Colonial Courts of
Admiralty (India) Act, 1891, constituted the following
courts of unlimited civil jurisdiction as Colonial Courts of
Admiralty :

(1) The High Court, Bengal.

(2) The High Court, Madras.

(3) The High Court, Bombay.

(4) The Chief Court of Lower Burmah.

(5) The Court of the Resident at Aden.

(6) The District Court of Karachi.

Rules by Order in Council have been made under sect. 7
of the Colonial Courts of Admiralty Act, 1890, as to the

ADMIRALTY APPEALS. 371

Courts at Aden, Bombay, and Karachi, and Calcutta. (See
as to the last an Order in Council, December 16th, 1911.)

The rules provide that the forms in use in the Admiralty
Division of the Supreme Court in England shall be followed
as nearly as the circumstances allow, and that the pro-
ceedings in suits brought in the court in the exercise of
its jurisdiction under the Colonial Courts of Admiralty
Act, 1890, not provided for by the rules, shall be regulated
by the rules and practice of the court in suits brought in
it in the exercise of its ordinary original civil jurisdiction.
It is presumed therefore that the rules in the Code of
Civil Procedure applicable to appeals to the Privy Council
will apply also to Admiralty appeals from the Indian courts.

The British courts established under the Foreign Colonial
Jurisdiction Acts have been constituted Colonial Courts of ^dmiraitf
Admiralty by various Orders in Council (u), wherever they in foreign
are situate in a maritime country. Where no special rules jurisdictions,
have been made for the Admiralty jurisdiction, it is
presumed that the rules governing the procedure before the
Colonial court in civil appeals will apply.

In the case of Cyprus, an Order in Council of 1910 Cyprus,
provides special rules for Admiralty appeals as follows :

A party desiring to appeal to His Majesty in Council
from any definitive judgment of the court shall —

(a) within one month of the date of the judgment appealed Notice of

from, serve upon every other party to the action aPPeal within
and upon the registrar of the court a notice in
writing signed by him or his advocate stating that
he appeals from such judgment ; and

(b) within a period to be fixed by the court but not exceed- Security.

ing three months from the date of such judgment
give security to the satisfaction of the court to an
amount not exceeding 300/., and shall without delay
take all necessary steps for forwarding the prepara-
tion of the record of proceedings and the despatch
thereof to England (v).

(u) See above, pp. 118 ff.

(v) The other rules are identical with those which regulate civil
appeals, save that the court is given power to enlarge or abridge
the times appointed by the rules.

24—2

CHAPTER XVI.

High Court
in England.

APPEALS FROM PRIZE COURTS («).

Prize appeals. THE jurisdiction of the High Court of Admiralty when
acting as a Prize Court under the Naval Prize Act, 1864, is
now vested in the High Court in England (Probate, Divorce
and Admiralty Division) . The appeal lies to the King in
Council (a) from " any order or decree of a Prize Court as
of right in case of a final decree, and in other cases with the
leave of the court making the order or decree " (b).

The appeal from the High Court (Admiralty Division)
when acting under sect. 14 of the Foreign Enlistment Act,
1870 (33 & 34 Yict. c. 90), with reference to a claim to a ship,
etc., captured as " prize of war " in violation of His Majesty's
neutrality, is to the Court of Appeal. (See sect. 27.)

The Admiralty Division of the High Court of Justice at
home, and the Colonial Courts of Admiralty abroad, when
duly empowered by their commissions, constitute the Prize
Courts of First Instance (c).

A Colonial Court of Admiralty (d) possesses the jurisdic-
tion conferred by the Naval Prize Act, 1864. the Slave
Trade Act, 1873, and by any enactment relating to prize or
the slave trade, on a Vice-Admiralty Court. It does not
possess the jurisdiction by any of those Acts conferred
exclusively on the High Court of Admiralty or the High
Court of Justice. But unless for the time being duly
authorised, the Colonial Court of Admiralty is not authorised
to exercise any jurisdiction under the Naval Prize Act, 1864r
or otherwise in relation to prize.

Eules in respect of prize proceedings in Colonial Courts
of Admiralty have been made by an Order in Council of

Prize Courts.

Jurisdiction
in prize
Colonial
courts.

Colonial
Courts of
Admiralty
acting as
Prize Courts

(a) See Supreme Court of Judicature Act, 1891 (54 & 55 Viet. c. 53).
The Naval Prize Bill which was introduced into Parliament in 1911,
and is likely to be reintroduced this year, provides a new Code of
Prize Law. An appeal is given not to the King in Council but to a
Supreme Prize Court consisting of certain members of the Judicial
Committee. Power is given to make new rules regulating the pro-
cedure of the Supreme Prize Court.

(6) Naval Prize Act, 1864, s. 5.

(d) See Col. Cts. of Adm. Act, 1890, s. 2 (3) (b).

APPEALS FROM PRIZE COURTS. 373

1898. These rules, so far as they relate to procedure, are
instructions, under sect. 2 of the Prize Courts Act, 1894,
for regulating the procedure of such courts as Prize Courts.
Rules Nos. 229 — 234 relate to appeals from Colonial Courts
of Admiralty acting as Prize Courts, and are taken from and
almost identical with the Rules of August 22, 1883 (see p. 369),
governing the steps to be taken in Vice-Admiralty Courts on
appeal to the Crown in matters of ordinary Admiralty jurisdic-
tion. A set of rules, approved by Order in Council dated
October 2' . >verns the practice in proceedings in prize

in the High Court. The rules as to appeals are in the same
terms. The above-named rules apply to the steps to be taken
in the appeal in the Prize Court of first instances, but do not
apply to the steps to be taken in the Appellate Court, which
are regulated by rules made in 1865.

It is submitted that as the Rules of 1908 apply subject to Rules of
the provisions of any statute or any statutory rule or order Aroc^te m
to all matters falling within the appellate jurisdiction of His Court.
Majesty in Council they are to be read together with the Rules
of December 11, 1865 (infra, p. 374), which govern the steps
to be taken in the Appellate Court in appeals in ecclesias-
tical and prize causes, and still regulate appeals in prize
from Colonial Courts of Admiralty. (See note (a) supra.)

If the appeal be from the High Court of Admiralty, the Time for
usual inhibition must be extracted within three months of inhibition-
the date of the order appealed from, and within six months
if the appeal be from a Colonial Admiralty Court, though courts,
the Judicial Committee have a discretion in extending the
time.

The Registrar of His Majesty in prize appeals, a special Registrar
official appointed by their lordships, is the proper custodian
of all processes and documents required in any appeal (dJ).
Formerly all prize appeals prayed to the Sovereign were
received and allowed by their lordships without previous
petition of appeal to or reference from the Sovereign, and the
sentence either affirmed or reversed by the Judicial Committee
without any report of their opinion to the Sovereign. This
practice is now altered, and the petition of appeal will be

(dd) The Naval Prize Bill proposes that the Registrar of the
Judicial Committee shall be the Registrar of the Supreme Prize Court.

374

THE PRACTICE OF THE PRIVY COUNCIL.

Enforcement
of decree in
prize appeal.

Definitions.

Appeal.

Judicial
Committee.

Registry.
Registrar.
Solicitor.

Instrument.

Month.

Solicitors
entitled to
practise in
appeal.

lodged and the reference to the Judicial Committee follow the
practice prescribed in the Rules of December 11, 1865.

The High Court in England (Admiralty Division) is
empowered by statute to enforce any order or decree either
of the Judicial Committee or of a Vice-Admiralty Court in
matters of prize.

Rules of 1865.

Rules for the conduct before the Privy Council of
ecclesiastical and maritime appeals made by Order in.
Council of 1865 — though it has been proposed to change
them — still apply to prize and to ecclesiastical appeals, save
where they are displaced by special rules prescribed by Act
of Parliament.

1. In the construction of these rules, the following terms
shall (if not inconsistent with the context or subject-matter)
have the respective meanings hereinafter assigned to them
(that is to say) : —

" Appeal " shall mean an appeal to Her Majesty in

Council in any ecclesiastical or maritime cause :
" Judicial Committee " shall mean the Judicial Committee
of Her Majesty's Privy Council, as the same shall be
constituted for hearing any such appeal :
"Registry" shall mean the registry of Her Majesty's
Court of Appeals in ecclesiastical and maritime causes :
" Registrar " shall mean the registrar of His Majesty in

ecclesiastical and maritime causes (/) :
11 Solicitor " shall mean any proctor, solicitor or attorney
entitled to practise before the Judicial Committee in
any appeal, or the party himself when conducting
the appeal in person :

" Instrument " shall mean any inhibition, citation, moni-
tion, relaxation, remission, attachment, sequestration,
of Her Majesty in ecclesiastical and maritime causes :
or other document on parchment issued under the
seal :

" Month " shall mean calendar month.
2. Any solicitor, attorney, or proctor who shall be entitled
to practise in the High Court of Chancery in England, in

(/) The duty of the King's Registrar is now discharged by the
Registrar of the Privy Council. See O. in C. 1904, infra, p. 403.

RULES IN PRIZE AND ECCLESIASTICAL APPEALS. 375

the Superior Courts of common law at Westminster, in the
High Court of Admiralty of England, or in the Arches Court
of Canterbury, shall be entitled to practise in any appeal.

3. Any solicitor desiring to prosecute an appeal shall Petition of
leave in the registry his petition to Her Majesty in Council aPPeal-

in duplicate, together with an office copy of the decree or
order appealed from, if the appeal has been apud acta ($0, or
the instrument of appeal, if the appeal has been before a
notary or witnesses. A form of the petition of appeal is
given in the Appendix, and is marked No. 1 (h').

4. When the registrar has ascertained that the petition Reference of
of appeal has been referred to the Judicial Committee, he Petition-
may, on the application (i) of the solicitor, issue the usual
inhibition and citation, and monition for process. Forms Inhibition,

of the inhibition and citation and of the monition for citat.i<>n and

monition,
process are given in the Appendix, and are marked ^Nos. 2

and 3.

5. If, within one month from the date of the petition of Dismissal of
appeal being referred to the Judicial Committee, the solicitor ^

for the appellant shall not take out the inhibition (Jc) and out 'in one
citation and the monition for process (/), the appeal shall month,
stand dismissed.

(g) An appeal apud acta is when, on the decree being made by the
court, the solicitor or proctor for the party aggrieved gives personally
notice to the registrar that he appeals therefrom, and the registrar
enters this appeal in the court minute book. An appeal in scriptis is
an instrument of appeal hi writing on a shilling stamp (see Stamp Act,
1870 ; and cf. Smyth v. S., 4 Hagg. EccL 72 (1831) ) attested by a
notary and two witnesses. The appeal should be interposed within
fifteen days of the judgment. Cf. The Ulster (1862), 1 Lush. 424, and
The Florence Nightingale (1862), ibid. 530. The appellant should not
only be expeditious in asserting his right or intention of appealing, but
he should do nothing in furtherance of the sentence or judgment as
attending to tax ; otherwise he may forfeit or perempt his right.
Brown v. Devonport (York, 1857), 11 Moo. 297 ; Lloyd v. Poole (1831),
3 Hagg. Eccl. at 481 ; Greg v. G. (1824), 2 Add. Eccl. 276.

(h) See infra, p. 381.

(i) When the appeal from the lower court was not as of right, and
leave to appeal was applied for ex parte, the Judicial Committee
declined to issue inhibition, but directed a citation and monition to
issue.

(/:) The inhibition is generally issued as a matter of course ; but if
there is doubt as to the competency of the appeal, the court will con-
sider whether there is sufficient ground for issuing the inhibition.
Herbert v. Herbert (1817), 2 Phill. 444 ; Poole v. Bishop of London
(1861), Brod. & Freem. Eccl. Cas. 176.

(I) The process consists of the whole proceedings and proofs in the
court below.

376

THE PRACTICE OF THE PRIVY COUNCIL.

Service of
inhibition,
etc.

Inhibition,
etc., to be
returned,
served

together with
the process.

Appearance
by respon-
dent.

Declaration
of adhesion by
respondent.

Attachment
of judge for
contumacy.

Enforcement
of decree.

Non-appel-
lant party
adhering.

6. The inhibition and citation shall be served on the
registrar (m) of the court appealed from, as well as on the
adverse party. If proof is given to the satisfaction of the
registrar that service cannot be made upon the adverse
party, it may be served upon his solicitor. It may also in
any case be served upon the solicitor instead of the party,
if the solicitor is willing to accept such service. The moni-
tion shall be served on the registrar of the court appealed
from (ri).

7. Within one month from the issue of the inhibition and
citation and the monition for process, if the appeal is from a
court in the United Kingdom, and within four months if
from a court out of the United Kingdom, the solicitor for
the appellant shall return the same duly served, together
with the process, into the registry, and if he shall not do so,
the appeal shall stand dismissed.

8. The solicitor for the respondent may enter an appear-
ance at any time after the petition of appeal has been
referred to the Judicial Committee, and whether the in-
hibition and citation and the monition for process have been
taken out or not. A form of the appearance is given in the
Appendix, and is marked No. 4.

9. If the respondent's solicitor desires to adhere (o) to the

(m) As to service in an Ecclesiastical appeal of a citation where
respondent is out of England by posting at the Royal Exchange, see
Law v. Campbell (1827), 1 Hagg. 55. The court below may at any
time, unless stayed by an inhibition, proceed to the enforcement of
the sentence. But if, after being served, the court below proceeds,
or refuses to comply with the monition from the Judicial Committee,
attachment will be issued against the judge and registrar for con-
tempt. Barton v. The Queen (Gibraltar, 1840), 2 Moo. 20 ; ibid. p. 23,
the inhibition is set forth ; and see the orders there made, p. 27. See
further, the same case, Barton v. Field (1843), 4 Moo. 273. As to
enforcement of decree of Judicial Committee where monition to pay
taxed costs has not been obeyed, cf. Lapraik v. Burrows (Vice-Adm.
1859), 13 Moo. 132 ; and Martin v. Mackonochie (1870), 7 Moo. (N. S.)
at p. 254, and cases referred to in note (a) thereto.

(n) The court appealed from cannot afterwards declare an appeal
to be deserted. That power remains with the Court of Appeal.
Rookes v. K. (1840), 2 Curt. 350.

(o) It is competent to a non-appellant party in the original cause to
adhere to the appeal interposed by another party therein, so far as his
interest is prejudiced by the sentence or decree appealed from. By so
doing he takes the benefit of the appeal, and obtains a re- hearing of
the question, which more particularly regards himself. Hitchings v.
Wood (1838), 2 Moo. 355. See Hocquard and Others v. The Queen (St.
Helena, 1857), 11 Moo. 155, as to a party not cited in the monition
being admitted by the Appellate Court to intervene in the appeal. If

RULES IN PRIZE COURTS APPEAL. 377

appeal, lie shall within one month from the time of entering
an appearance file in the registry a declaration of adhesion,
stating from what part of the decree or order of the court
below he desires to appeal. A form of the declaration of
adhesion is given in the Appendix, and is marked No. 5.

10. Within one month from the process being brought in, Printed copies
the solicitor for the appellant shall bring into the registry °f ^ppee^[^t
printed copies of the appendix (p), and if he shall not do

so, the appeal shall stand dismissed (q).

11. The appendix shall be paged consecutively throughout, Appendix.
and shall have an index at the commencement. It shall index,
contain a copy of all documents filed in the court below
material to the issue in the appeal, and of the judgment of the

said court given on the occasion of the decree or order appealed
from, certified by the reporter of the court to be correct.

12. Within one month from the printed copies of the Appellant's
appendix being brought in, the solicitor for the appellant case*
shall bring into the registry printed copies of his case ; and

if he shall not do so the appeal shall stand dismissed (q).

13. Within one month from the printed copies of the Respondent's
appendix being brought in, the solicitor for the respondent c

shall bring in printed copies of his case ; and if he shall not
do so, the appellant may notwithstanding proceed with his
appeal.

14. As soon as the time allowed for bringing in the cases Case to stand
has expired, the appeal shall stand for hearing before the

Judicial Committee, provided that where an appearance has
not been entered a period of four months has expired from
the bringing in of the petition of appeal.

15. Where the appellant resides out of the United King- Appellant out
dom, he shall, within two months after his solicitor has been £0 ^j G
served with a notice to that effect, give bail by two sufficient security,
sureties to answer the costs of the appeal in the sum of two

however, the appeal is dropped, the adherence drops also, and the
adherent cannot appeaL It is therefore common for parties to appeal
independently in preference to adhering.

(p) That is, the record or appendix of the documents and other
papers referred to in the cases of the parties, or documents filed in the
court below material to the issue of the appeaL Of. r. 28, note (t),
infra.

(q) Cf. Brownlow v. Garson (1843), 4 Moo. 272, decided under the
old practice, in which, on the appeal not being prosecuted, the cause
was remitted to the court appealed from.

378

THE PRACTICE OF THE PRIVY COUNCIL.

Proxy.

Proxy of
abandon-
ment.

Extension of
time.

Co3tS.

Reinstate-
ment of
appeal.

Relaxation of
inhibition.

hundred pounds ; and if he shall not do so, the appeal shall
stand dismissed. Forms of the bail bond, affidavit of justi-
fication, and commission to take bail, are given in the
Appendix, and are marked Nos. 6, 7 and 8.

16. At any time before the appeal is set down for hearing
before the Judicial Committee, the registrar may, on the
application of either solicitor (r) make an order on the
adverse solicitor to file a proxy from his party within such
time as the registrar shall appoint, and if the adverse
solicitor shall not within such time file his proxy, motion
may be made to the Judicial Committee to enforce the order
either by dismissing the appeal, or in such other way as the
Judicial Committee shall direct. A form of the proxy is
given in the Appendix, and is marked No. 9.

17. It shall be competent to the appellant's solicitor at
any stage of the proceedings to file in the registry a proxy
from his party, stating that he abandons the appeal, and
consents to be condemned in the costs thereof, and there-
upon the appeal shall stand dismissed. A form of the proxy
of abandonment is given in the Appendix, and is marked
No. 10.

18. The registrar may, on good cause shown, extend the
time allowed by these rules for doing any act.

19. When an appeal by these rules stands dismissed, the
appellant shall, unless there is a special agreement to the
contrary, stand condemned in the costs of the appeal.

20. When an appeal by these rules stands dismissed,
either solicitor may within one fortnight from that time file
in the registry a notice of motion to have the appeal rein-
stated, and on the hearing of the motion the Judicial Com-
mittee may, if it so think fit, direct the appeal to be rein-
stated, subject to such order as to the costs or otherwise
as to it shall seem meet.

21. If notice of motion to have the appeal reinstated be
not given within the time prescribed by the preceding rule,
the registrar may, on the application of either solicitor, issue

(r) Proxies were formerly exhibited by each party without being
called on to do so. See the statement of Dr. Lushington as to the
practice in the Court of Admiralty and in the Ecclesiastical Courts as
to proxies in Harvey v. Owners of SS. Euxine (Malta, 1871), L. R.
4 P. C. 8. "

RULES IN PRIZE COURTS APPEAL. 379

a relaxation of the inhibition. A form of the relaxation of
inhibition is given in the Appendix, and is marked No. 11.

~2'2. If, on the final hearing, the Judicial Committee shall Remission of
order the cause to be remitted, the registrar shall, on the cause-
application of either solicitor, issue a remission. A form of
the remission is given in the Appendix, and is marked
No. 12.

Xeither solicitor shall be entitled to plead specially, Pleading
whether in objection to the jurisdiction, or in respect of SP001*11^
noviter preventa or of any other matter, without leave having
been first obtained from the Judicial Committee.

•24: . In case either solicitor is allowed to plead, the rules
which are in force for the time being in the High Court of
Admiralty in regard to pleadings and proofs shall, so far as
they are applicable, and not inconsistent with these rules,
be the rules in regard to pleadings and proofs in appeals.

•2'>. In case any matter is referred to the registrar, or to References
the registrar assisted by merchants, to report upon, the to res*8*1**-
same rules which are in force for the time being in the
High Court of Admiralty in regard to references shall, so
far as they are applicable, be the rules in regard to references
in the Court of Appeal.

26. If a party shall not pay any amount which shall have Monition for
been found to be due from him within a fortnight after he shall Payment-
have received notice from the adverse solicitor demanding
payment of the same, the registrar may, on the application
of the solicitor, and on an affidavit being filed proving the
notice, issue a monition for payment thereof (s). A form
of the monition for payment is given in the Appendix,
and is marked No. 13.

'27. Upon the monition being returned duly served, and Attachment
an affidavit filed that the amount has not been paid, motion ^sequestra-
may be made to the Judicial Committee for an attachment
or a sequestration, as the case may be. Forms of the attach-

(s) For enforcing decree by attachment and sequestration, see
Martin v. Mackcmochie (1870), 7 Moo. (N. S.) 239. As to framing
monition to churchwardens and issue of a second monition where first
incorrectly framed, see Liddell v. Beat (1860), 14 Moo. 1. The Judicial
Committee possess the power of suspension both ab officio and ab
beneficio as a summary punishment for contumacy. This power was
exercised where there was persistent contumacy in disobeying a
monition. Hebbert v. Purcha* (Eccl. 1872), L. R, 4 P. C. 301, approved
in Mackonochie v. Penzance (1881, H. L.), 6 A. C. 424.

380

THE PRACTICE OF THE PRIVY COUNCIL.

Number of
copies of case
or appendix.

Filing
documents.

Order by
consent.

Fees.

Abolition of
proceedings
before sur-
rogates.

Existing
practice.

Instruments
returnable
before,
Judicial
Committee or
a surrogate.

ment, supersedeas of attachment, sequestration, relaxation
of sequestration, sequestration of benefice, and relaxation of
sequestration of benefice are given in the Appendix, and
are marked Nos. 14, 15, 16, 17, 18 and 19.

28. When an appendix or case (t) is brought in, sixty
copies thereof shall be left in the registry, and forty delivered
to the adverse solicitor, if any.

29. Save in an appeal proceeding by default, no document
shall be allowed to be filed without a certificate that a copy
thereof has been previously served upon the adverse solicitor.

30. Any consent in writing between the solicitors may,
with the approval of the registrar, be filed, and shall there-
upon become an order of court.

31. The practice heretofore existing in regard to libels of
appeal, setting down causes on motion by counsel, and all
acts and proceedings before surrogates, are abolished. But
the same fees shall be allowed for filing any document,
returning any instrument or doing any act by a solicitor in
the registry, as have heretofore been allowed for doing any
similar act before a surrogate in chambers.

32. The existing practice of the court shall continue in
force, save in so far as it is inconsistent with these rules.

33. All instruments already issued or hereafter to be
issued, and which are made returnable before the Judicial
Committee, or before a surrogate of the Judicial Committee,
may be returned into the registry.

(t) The following table of fees on hearing appeals in prize cases
which was issued as a schedule to an Order in Council of June, 1853,
still applies : —

FEES ON HEARING APPEALS IN PRIZE CAUSES.

Hearing a Cause-
To the successful party ... ... 5

Do. unsuccessful party ... ... 2

Where both parties may succeed, although the sentence

may have been in part reversed . ... 3

Desertion of appeal .... ... 2

Sentence taken by Consent or In pcenam.

To the successful party to whom the fees of interlocutory
are charged by registrar ......

Where counsel is heard, cause not determined, each party . 2
Motion by counsel, gaining party . . . . .1

Hearing an admission of allegations, or act on petition,
gaining party ........ 2

If part admitted and part rejected, each party . . 1

4 15

2
1

RULES IN PRIZE COURTS APPEAL. 381

SCHEDULE annexed to the foregoing Order.

FORM Xo. 1.

Petition of Appeal.

In Her [Majesty's Court of Appeal.

From the [state Court appealed from'].

[State Title of Appeal']
To the Queen's most Excellent Majesty :
The humble petition of [state Jiame and address of solicitor],
solicitor for the above-named [state appellant's name],
Sheweth,

That in a certain cause lately depending in the [_state
Court appealed from'], promoted by [state name and descrip-
tion of plaintiff in Court below] against [state name and
description of defendant and of property, if any, proceeded
against in Court beloiv], the [state name of Judge], the Judge
of the said Court, did on the day of 18 decree or

order [state purport of decree or order appealed from], from
which decree or order an appeal has been duly interposed.

Wherefore your petitioner most humbly prays that your
Majesty will be graciously pleased to reverse the said decree
or order, or to make such order in the premises as to your
Majesty shall seem meet.

Dated at this day of 18 .

[To be signed by the solicitor.]

FORM No. 2.

Inhibition and Citation.

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To all and singular our liege subjects, being literate persons
whomsoever and wheresoever in and throughout our saidi
United Kingdom and other our dominions, and especially
to our officer lawfully appointed, greeting :

Whereas in a cause [_state nature of cause] lately depending
in [state from ichat Court tlie cause is appealed], promoted by

382 THE PRACTICE OF THE PRIVY COUNCIL.

[state name and description of plaintiff in Court Mow] against
[state name and description of defendant and of property, if any,
proceeded against in Court leloiv], the [state name of Judge],
the Judge of the said Court, did on the day of

18 [state purport of decree or order appealed from] from
which said decree or order an appeal has been duly made to
us in Council on behalf of the said [state name of appellant],
and has by us been referred to the Judicial Committee of
our said Council.

We do therefore hereby authorize and command you jointly
and severally to inhibit or cause to be inhibited the said
[state name and title of Judge of Court below], from whom the
said cause is appealed, his registrar or actuary, and the said
[state name of respondent] and all other persons whomsoever,
that neither they nor any of them pending the said appeal
do or attempt anything to the prejudice of the said appellant
or of his said appeal. And further that you cite or cause to
be cited the said [state name of respondent] and all other
persons having any interest in the said appeal, to enter an
appearance in the registry of our Court of Appeals for
ecclesiastical and maritime causes, situate at within

days after service thereof. And that you warn them
that if they do not enter an appearance as aforesaid, we shall
proceed to determine the said appeal, or make such order in
the premises as to us shall seem meet.

Given at London, under the seal which we use in this
behalf, the day of in the year of our Lord

18 .

(L.S.) A. B.

Inhibition and citation H. M. Registrar.

Taken out by

FORM No. 3.

Monition for Process.

In Her Majesty's Court of Appeals.

From the [state Court appealed from] .

[State Title of Cause.]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :

RULES IN PRIZE COURTS APPEAL. 383

To all and singular our liege subjects, being literate persons
whomsoever and wheresoever in and throughout our said
"United Kingdom and other our dominions, and especially
to our officer lawfully appointed, greeting :

Whereas in a cause lately depending in the [state Court
appealed from], promoted by [state name and description of
plaintiff in Court beloiv], against [state name and description
of defendant and of property, if any, proceeded against in Court
toloto], the [state name of Judge] , the Judge of the said
Court, did on the day of 18 [state purport of

decree or order appealed from], from which decree or order an
appeal has been duly made to us in Council on behalf of the
said [state name of appellant] , and has by us been referred
to the Judicial Committee of our Privy Council : We do
hereby authorize and command you jointly and severally to
monish or cause to be monished the said [state name and
title of Judge of Court Mow] his registrar or actuary, and all
other persons in whose custody or control any of the pro-
ceedings which in any way relate to the said cause do now
remain, that within days after service hereof they

transmit or cause to be transmitted the whole proceedings
had and done in the said cause, in a proper and authentic
form, to the registry of our Court of Appeals for ecclesiastical
and maritime causes situate in together with these

presents.

Given at London, under the seal which we use in this
behalf, the day of in the year of our Lord,

18 .

(L.S.) A. B.,

Monition for process H. M. Registrar.

Taken out by

FOKM No. 4.
Appearance («•).

In Her Majesty's Court of Appeals.
From the [state Court appealed from] .

[State Title of Appeal]

I [state name and address of solicitor] hereby certify, that
(«) Rule 8.

384 THE PRACTICE OF THE PRIVY COUNCIL.

I am authorized to and do enter an appearance in this
.appeal on behalf of [state name, address, and description of
party] .

Dated the day of 18 .

[To ~be signed ~by the solicitor or by his clerk for him.]

FORM No. 5.

Declaration of Adhesion (x).

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

Whereas in a cause lately depending in [state Court
appealed from] , promoted by [state name and description of
plaintiff in Court below] against [state name and description
of defendant and of property, if any, proceeded against in Court
Mow], the [state name of Judge], the Judge of the said
Court, did on the day of 18 , decree or order

[state purport of decree or order appealed from] , from which
decree or order an appeal has been made to Her Majesty in
Council on behalf of the said [state name of appellant], and
has by Her Majesty been referred to the Judicial Committee
of her said Council. Now I [state name], the solicitor for
the said [state name] , the respondent in the said appeal, do
hereby adhere to the same appeal, and do dissent from the
said decree or order in so far as [state part of decree or order
from ivhich respondent's solicitor dissents] .
Dated the day of 18 .

[To be signed by the respondent's solicitor
or by Ms clerk for him]

FORM No. 6.
Bail Bond(2/).

In Her Majesty's Court of Appeals.
From the [state Court appealed from] .

[State Title of Appeal]
Whereas in a cause lately depending in [state Court

(x) Rule 9. (y) Rule 15.

RULES IN PRIZE COURTS APPEALS. 385

appealed from] , promoted by [state name and description of
plaintiff in Court below] against [state name and description
of defendant and of property, if any, proceeded against in
Court below], an appeal has been made to Her Majesty in
Council on behalf of [state name of appellant], and has by
Her Majesty been referred to the Judicial Committee of her
said Council. Now therefore we [state names and descrip-
tions of sureties] hereby jointly and severally submit our-
selves to the jurisdiction of the said Judicial Committee,
and consent that if he the said [state name of appellant] shall
not pay what may be adjudged against him for the costs
of the said appeal, execution may issue forth against us, our
heirs, executors, and administrators, goods and chattels, for
a sum not exceeding [state sum in ivords and figures']
pounds.

This bail bond was signed by the said
and , the sureties, the day [Signatures of

of , 18 . I sureties.

Before me

[To be signed before the registrar or one of the
clerks in the registry, or before a commissioner.']

FORM No. 7.

Affidavit of Justification (z).

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

I [state name, address, and description] , one of the
proposed sureties for [state name, address, and description of
the person for whom bail is to be given] , make oath and say,
that I am worth more than the sum of [ ] hundred

pounds after payment of all my debts.
On the day of 18 , the said

was duly sworn to the truth 'of this

affidavit at

Before me

Commissioner.

Signature of
surety.

(z) Rule 15.
P.C. 25

386 THE PRACTICE OF THE PRIVY COUNCIL.

FOBM No. 8.

Commission to take Bail (a).

In Her Majesty's Court of Appeals.

From the [state Court appealed from] .

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To [state name and address of commissioner] greeting :

Whereas in the above-named appeal now depending before
the Judicial Committee of our Privy Council bail is required
to be taken on behalf of [state name and description of
appellant], the appellant, in the sum of two hundred pounds,
to answer judgment so far as regards the costs of the said
appeal : We therefore hereby authorize you to take bail in
the said sum on behalf of the said [state name of appellant]
from two sufficient sureties, who may be produced before
you for that purpose, upon the bail bond hereto annexed,
and to swear the said sureties to the truth of the annexed
affidavits as to their sufficiency ; and we command you,
upon the said bail bond and affidavits being duly executed
and signed by the said sureties, to transmit the same,
attested by you, into the registry of our Court of Appeals
for ecclesiastical and maritime causes.

Given at London, under the seal which we use in this
behalf, the day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Commission for bail. H. M. Registrar.

Taken out by

The Form of Oath to ~be indorsed on the Commission, and to

~be administered to each of the Sureties.
You swear that the contents of the affidavit to which you
have signed your name are true.

So help you God.

(a) Rule 15.

RULES IN PRIZE COURTS APPEALS. 387

FORM No. 9.

Proxy (6).

In Her Majesty's Court of Appeals.
From the [state Court appealed from}.

[State Title of Appeal.']

I [state name, address and description'], lately the [state
whether plaintiff or defendant] in a cause which was depend-
in the [state in what Court} and from the decree in which
an appeal has been interposed to Her Majesty in Council,
and now the [state ivhether appellant or respondent] in the
said appeal, do hereby appoint [state name and address of
solicitor'] to appear and conduct all proceedings in my
behalf in this appeal.

Dated the day of , 18 .

[To designed by the party.]
Witness,

FORM No. 10.

Proxy of Abandonment (c).

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

I [imert name and description], the appellant in the
above-named appeal, do hereby declare, that I abandon the
same, and proceed no further therein, and I undertake to
pay all costs that may have been incurred by the respondent
herein; and I authorize and direct you [insert name of
;'or], my solicitor in the said appeal, to file this proxy
in the registry of Her Majesty's Court of Appeals for
ecclesiastical and maritime causes.
Dated the day of , 18 .

[To be signed by the appellant]
Witness,

(6) Rule 16. (c) Rule 17.

25—2

THE PRACTICE OF THE PRIVY COUNCIL.

FORM No. 11.

Relaxation of Inhibition (d).

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To [state name and title of Judge of Court below], or his
surrogate, or some other competent Judge in this behalf,
greeting :

Whereas in a cause lately depending in the said Court
promoted by {state name and description of plaintiff in Court
lelow], against [state name and description of defendant and
property, if any, proceeded against in Court Mow], an appeal
from an order or decree of the judge of the said Court was
made to us in Council on behalf of the said [state name of
appellant] , and was by us referred to the Judicial Committee
of our said Council : and whereas on the day of ,

18 , we did command that [_you~] the said [state name
and title of judge from whom the cause was appealed], [your]
registrar or actuary, and the said [state name of 'respondent],
and all other persons whosoever, should be inhibited from
attempting anything to the prejudice of the said appellant
or of his said appeal : and whereas the said [state name of
appellant] has abandoned his said appeal [or failed to
prosecute his said appeal tvithin the time allowed by law], we
do therefore hereby relax the said inhibition, justice so
requiring.

Given at London, under the seal which we use in this
behalf, the day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Eelaxation of Inhibition H. M. Registrar.

Taken out by

(d) Rule 21.

RULES IN PRIZE COURTS APPEALS. 389

FORM No. 12.
Remission (e).

In Her Majesty's Court of Appeals.
From the [state Court appealed from].

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To [state name and title of Judge of Court Mow], his surro-
gate, or some other competent Judge in this behalf, greeting :
Whereas in a cause lately depending in the said Court pro-
moted by [state name and description of plaintiff in Court
below] against [state name and description of defendant and of
property, if any, proceeded against in Court Motv], an appeal
from an order or decree of the Judge of the said Court was
made to us in Council on behalf of the said [state name of
appellant], and was by us referred to the Judicial Committee
of our said Council : and whereas our said Judicial Committee
did on the day of , 18 , report to us against

the said appeal, and that the decree or order appealed from
ought to be affirmed, and the cause remitted, with all its
incidents (save the costs incurred in the said appeal), to the
Judge of the said Court from which the same was appealed
[or, as the case may be] : and whereas on the day of

we were pleased, by and with the advice of our Privy
Council, to approve of the said report, and to order that the
same should be duly carried into execution (justice so
requiring), we do therefore hereby authorize and command
you to resume into your own hands the said cause, with all
its incidents (save as aforesaid), and freely to proceed therein
according to the exigence of the law and the tenor of the
former proceedings, and to administer justice between the
parties, any inhibition heretofore issued to the contrary
notwithstanding.

Given at London, under the seal which we use in this
behalf, this day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Remission H. M. Registrar.

Taken out by

(e) Rule 22.

390 THE PRACTICE OF THE PRIVY COUNCIL.

FOKM No. 13.

Monition for Payment (/).

In Her Majesty's Court of Appeals.

From the [state Court appealed from}.

[State Title of Appeal.']

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To [state name and address of person to be monished],
greeting :

Whereas in the above-named appeal, now or lately
depending before the Judicial Committee of our Privy Council
the sum of [state sum in ivords] has been found due from you
the said [state name of person to be monished] to [state name
of person to wliom the sum is due~] for [state for what the
sum is due~] : We therefore hereby command you the said
[state name of person monished] to pay within days

from the service hereof (exclusive of the day of service) the
said sum of [state sum in words'] to the said [state name
and address of person to tvhom the money is to le paid]
accordingly, and hereof fail not.

Given at London, under the seal which we use in this
behalf, the day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Monition to pay £ H. M. Register.

Taken out by

FORM No. 14.
Attachment (g).

In Her Majesty's Court of Appeals.
From the [stale Court appealed from].

[State Title of Appeal"]
Victoria, by the grace of God of the United Kingdom of

(/) Rule 26. A monition to churchwardens should not be issued to
them nominatim, but " for the time being." Liddell v. Seal (1860),
14 Moo. 1.

(g) Rule 27. Cf. form of attachment issued in Barton v. The Qiieen,
2 Moo. at p. 26, note, to the Judge, Registrar, and Deputy-Marshall of
the Vice- Admiralty Court of Gibraltar, for contumacy.

RULES IN PRIZE COURTS APPEALS. 391

Great Britain and Ireland Queen, Defender of the Faith :
To all and singular our justices of the peace, mayors, sheriffs,
bailiffs, marshals, constables, and to all our officers, ministers,
and others whomsoever, greeting :

Whereas in the above-named appeal, now or lately
depending before the Judicial Committee of our Privy
Council, our said Judicial Committee has decreed {state
name and description of person to be attachefJ] to be attached
for manifest contumacy and contempt in not having obeyed
our monition bearing date the day of , 18 ,

heretofore issued by us in the said appeal, requiring him to
[state in what the contempt has consisted] : We therefore
hereby command you to attach and arrest the said [state
name of person to be attached], and to keep him under safe
arrest until you shall receive further orders from us, or until
the said [state name of person to be attached] shall have
obeyed our said monition, and cleared himself of his said
contempt.

Given at London, under the seal which we use in this
behalf, the day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Attachment H. M. Registrar.

Taken out by

Indorsement.

In Her Majesty's) To receive into your custody the

Court of Appeals.] body of herewith sent you, for the

cause hereunder written ; that is to say,

For his manifest contumacy and contempt in not having
obeyed the within-mentioned monition [or as the case
may be].

A.B.,

H. M. Registrar.

392 THE PRACTICE OF THE PRIVY COUNCIL.

FORM No. 15.

Supersedeas of Attachment.
In Her Majesty's Court of Appeals.
Prom the [state Court appealed from].

[State Title of Appeal.]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To the or keeper of our prison called the

in our county of , his deputy or deputies, and all

persons whomsoever in whose custody the body of the under-
mentioned [state name of person attached'] now is or remains,
greeting :

Whereas the Judicial Committee of our Privy Council has
ordered that the attachment heretofore issued in the above-
named appeal against the said [state name and description of
person attached], bearing date the day of 18 ,

be superseded [here state the conditions, if any, on which the
supersedeas is to issue] : We therefore hereby command that
[here state the conditions as before] you forthwith release
the said [state name of person attached], and hereof fail
not.

Given at London, under the seal which we use in this
behalf, the day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Supersedeas of attachment H. M. Eegistrar.

Taken out by

FORM No. 16.

Sequestration (h).

In Her Majesty's Court of Appeals.

From the [state Court appealed from] .

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :

(h) Rule 27 ; and see 7 & 8 Viet. c. 69, s. 12, supra ; cf. Lapraik v.
Burrows (Hong Kong, 1859), 13 Moo. at p. 161,

RULES IN PRIZE COURTS APPEALS. 393

To [state names, addresses, and descriptions of the
sequestrates'], greeting :

Whereas, in the above-named appeal, now or lately
depending before the Judicial Committee of our Privy
Council, our said Judicial Committee has decreed process of
sequestration against the real and personal estate and effects
of [state name, address, and description of person tvhose
property is to be sequestered], for manifest contumacy and
contempt in not having obeyed our monition, bearing date
the day of 18 , heretofore issued by us in the

said appeal, requiring him to [state in ivlutt the contempt has
consisted]. We therefore, confiding in your prudence and
fidelity, hereby command you [or two of you] that you do
at certain proper and convenient days and hours enter upon
all the messuages, lands, tenements and real estate whatso-
ever and wheresoever situate within our dominions of the
said [state name of person whose property is to be sequestered]
and that you collect and receive into your hands the rents
and profits of his said real estate and all his personal estate
wheresoever lying within our dominions, and keep the same
in your hands until you shall have levied [here state the sum,
if any, to be levied, and any necessary directions as to the dis-
posal thereof], or until the said [state name of person ivhose
property is to be sequestered] shall have cleared his contempt
[or as the case may be], and our said Judicial Committee
shall make other order to the contrary ; and that you from
time to time report to us what you shall do in the
premises.

Given at London, under the seal which we use in this
behalf, this day of , in the year of our Lord

18 .

(L,S.) A. B,,

Sequestration H. M. Registrar.

Taken out by

B94 THE PRACTICE OF THE PRIVY COUNCIL.

FORM No. 17.

Relaxation of Sequestration.
In Her Majesty's Court of Appeals.
From the [state Court appealed from].

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To [state names and addresses of sequestrators], greeting :

Whereas the Judicial Committee of our Privy Council
has ordered that the sequestration heretofore issued in the
above-named appeal against [state name of person whose
property ivas sequestered^ bearing date the day of

18 , be relaxed, we therefore hereby command that
you release all the messuages, lands, tenements, and real
estate whatsoever and wheresoever situate within our
dominions of the said [state name of person whose property
was sequestered], and desist henceforth from collecting or
receiving the rents and profits of his said real estate ; and
further, that you release all his personal estate wheresoever
lying within our dominions which may not have been already
disposed of by you in accordance with the tenor of our said
sequestration ; and that you duly report to us what you shall
have done in the premises.

Given at London, under the seal which we use in this
behalf this day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Relaxation of sequestration H. M. Registrar.

Taken out by

FORM No. 18.

Sequestration of Benefice.

In Her Majesty's Court of Appeals.

From the [state Court appealed from].

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :

RULES IN PRIZE COURTS APPEALS. 395

To the Right Reverend Father in God , by divine

permission Lord Bishop of , greeting :

Whereas in the above-named appeal, now or lately
depending before the Judicial Committee of our Privy
Council, our said Judicial Committee has decreed process of
sequestration against [state name of the person whose benefice
is to be sequestered], rector of the rectory [or vicar of the
vicarage] and parish church of , in the county of

, and within your diocese : We therefore hereby
command that you enter into the said rectory [or vicarage]
and parish church of and take and sequester the same

into your possession, together with the rents, tithes, rentcharges
in lieu of tithes, oblations, obventions, fruits, issues and profits
thereof, and all other ecclesiastical goods in your diocese of
and belonging to the said rectory [or vicarage] and parish
church, and to the said as rector [or vicar] thereof ;

and that you hold the same in your possession until [state
here the purpose for which the, sequestration is made, and any
oilier necessary directions, according to the circumstances], and
until our said Judicial Committee shall make other order to
the contrary ; and that you from time to time report to us
what you shall do in the premises.

Given at London, under the seal which we use in this
behalf, this day of , in the year of our Lord,

18 .

(L.S.) A. B.,

Sequestration of benefice H M. Registrar.

Taken out by

FORM No. 19.

Relaxation, of Sequestration of Benefice.
In Her Majesty's Court of Appeals.
From the [state Court appealed from\

[State Title of Appeal]

Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith :
To the Right Reverend Father in God by divine

permission Lord Bishop of , greeting :

396 THE PRACTICE OF THE PRIVY COUNCIL.

Whereas the Judicial Committee of our Privy Council has
ordered that the sequestration heretofore issued in the above-
named appeal against [state name of person ivhose benefice
was sequestered], rector of the rectory [or vicar of the
vicarage] and parish church of in the county of

and within your diocese, bearing date the day

of 18 , be relaxed : We therefore hereby command

that you release the said rectory [or vicarage] and parish
church, together with the rents, tithes, rentcharges in lieu
of tithes, oblations, obventions, fruits, issues and profits
thereof, and all other ecclesiastical goods in your diocese of
and belonging to the said rectory [or vicarage] and parish
church and to the said as rector [or vicar] thereof,

except such as may have been already disposed of by you in
accordance with the tenor of our said sequestration; and
that you duly report to us what you shall do in the
premises.

Given at London, under the seal which we use in this
behalf, this day of , in the year of our Lord,

18 .

(L.S.) A. B.,

H. M. Registrar.

Relaxation of sequestration of benefice
Taken out by

CHAPTEK XVII.

APPEALS FROM ECCLESIASTICAL COURTS.

THE various Ecclesiastical Courts of the country were The creation
established, and their jurisdiction is determined very largely
according to present-day use by a statute of Henry VIII.
(24 Hen. VIII. c. 12). This statute provided for appeals
from the lower to the higher courts, making the Court of
the Archbishop the court of ultimate resort (ibid. ss. 6, 7),
save only in matters touching the King, which were to be
determined before the Upper House of Convocation. By
a later statute, however, 25 Hen. VIII. c. 19, s. 4, "for
reason of the lack of justice in the Courts of the Archbishop,"
an appeal was given therefrom to the King in Chancery, Appeal to
and it was enacted that upon such appeal " a commission
shall be directed under the Great Seal to such persons as
shall be named by the King, like as in case of appeal from
the Admiral's Court to hear and definitively determine such
appeals." The sentence of the said commissioners was to
be definitive, and no further appeal allowed. Under this
provision the refusal of the archbishop to entertain a suit is
a matter of appeal. Readv. Archbishop of Canterbury, P. C.
Arch. 1888. But the promoters, on establishing an
ecclesiastical offence of illegal procedure in ceremonial and
worship, are not entitled to a monition as of right, since the
archbishop is entitled to accept an assurance of future
submission. Read v. Bishop of Lincoln, (1892) A. C. 644.

The commission above contemplated came to be known High Court of
as the High Court of Delegates, on account of their receiv- Delegates-
ing a special commission or delegation to try each particular
cause.

The High Court of Delegates was abolished, and the Appeal to
appeal was given to the King in Council by 2 & 3 Will. IV.
c. 92, s. 3 ; subsequently, on the formation of the Judicial
Committee, it was enacted by 3 & 4 Will. IV. c. 41, that

398 THE PKACTICE OF THE PRIVY COUNCIL.

the hearing of appeals which may be brought before the
King in Council from or in respect of the determination,
sentence, rule, or order of any court, judge, or judicial
officer, shall be referred to His Majesty in Council, and
heard before that body. Tbid. s. 3. The presence of three
bishops as assessors is required at the hearing of every
ecclesiastical appeal.
Courts. The ordinary ecclesiastical courts are :

(1) The Provincial Courts of Canterbury and York.

The Provincial Courts of Canterbury are —

The Court of Arches (a), or the Supreme Eccles-
iastical Court of Appeal ;

The Court of the Vicar-General ;

The Court of the Master of the Faculties ;

The Court of Audience ;

The Court of the Commissary of the Archbishop ;

[The Prerogative Court] ;
and of York —

Chancery Court or Supreme Court of the
Province ;

The Consistory Court ;

The Court of Audience ;

(2) The Diocesan Courts, being the Consistorial

Court of each diocese exercising general juris-
diction, e.g., under the Clergy Discipline Acts.

(3) The Courts of Commissaries.

(4) The Archidiaconal Courts.

(5) Courts of various Peculiars. These courts are

practically abolished. (Phill. p. 927.)
A new Court has been created by the Benefices Act,
1898.

Appeals. Appeals formerly lay directly to the High Court of

Delegates, or more properly to the King in Chancery, from
the following Courts :

(1) The Provincial Courts of the several Archbishops (V)
in England and Ireland.

(a) See Phillimore 's Ecclesiastical Law (ed. 1895), p. 22.

(6) The Archbishop's Court. — In Lucy v. Bishop of St. David's
( (1693), 1 Ld. Raymond, 447, 539 ; 1 Salk. p. 134), the argument was
that the citation " to appear before the Archbishop or his vicar-
general in the Hall of Lambeth House " was not a citation before any
court whereof the law takes notice, but that the citation should have

APPEALS FROM ECCLESIASTICAL COURTS. 399

(2) The Peculiar Courts, such as that of the Dean and
Chapter of Westminster, and many others
exempt from archiepiscopal jurisdiction. Among
these should be included, as partaking in some
degree of an ecclesiastical character, the Court
of the House of Convocation of Oxford Univer-
sity, from the delegates of which there are on
record several appeals to the High Court of
Delegates.

The civil jurisdiction comprised testamentary (c) and
matrimonial (c) causes, and various kinds of ecclesiastical
causes more properly so called, such as suits for church
rates (d), tithes (d), and dilapidations, faculty causes, pew
causes, questions as to the election of churchwardens,
causes duplicis querelce, instituted by a clergyman presented
to a benefice to compel the bishop to admit him, and other
suits in which the right of presentation or title to a benefice
was in dispute.

The only ecclesiastical appeal brought under the general
jurisdiction in recent years was a petition to the Judicial
Committee for special leave to appeal in forma pauperis
against the decision of the Court of Arches upholding the
judgment of a Consistory Court, which dismissed a suit
against churchwardens for making alterations in a church
without a faculty. But the petition was dismissed because
the Board held that the petitioner had not made out aprimd
facie case for appeal, which was necessary when it was
sought to appeal in forma pauperis. Paddington v. Sidgurch
and Others, The Times, December 18, 1909.

The criminal jurisdiction embraced all "causes of correc-
tion" instituted either against a clergyman or a layman
for any offence against the ecclesiastical law. Such, for
instance, were suits against a clergyman for simony, non-
been before the Arches or some other court of the Archbishop. It
was decided that " the Archbishop hath a provincial power over all
the clergy of his province, and may hold his court where he pleases ;
and he may convene before himself and sit judge himself ; and so may
any other bishop ; for the power of a chancellor or vicar-general is
only delegated in the case of a bishop." This was an answer to the
plea that the bishop should be tried before the Court of Arches, and
this ruling was followed in Ex parte Read, 13 P. D. 221.

(d) Mostly now sent by statute to the civil magistrate.

400

THE PRACTICE OF THE PRIVY COUNCIL.

Statutory
jurisdiction.

Election of

Appellate

Court.

Appeals from
Channel
Islands, etc.

Time limit
for appeals.

residence, neglect of duty, or irregularity in its performance ;
against churchwardens for not duly rendering their accounts,
or for making alterations in a church without a faculty ; or
against either clergyman or layman for heresy, non-
conformity, immorality or brawling (e).

Besides the above appeals, the jurisdiction to entertain
which has been transferred by 2 & 3 Will. IV. to the King
in Council, who now refers them to the Judicial Committee
by virtue of 3 & 4 Will. IV. c. 41, appeals under the Church
Discipline Act. 1840 (/), and the Clergy Discipline Act,
1892 (g), lie direct to the King in Council.

By sect. 4 (4) of the Clergy Discipline Act, 1892 (55 &
56 Viet. c. 32), however, if the appellant elect to proceed by
way of appeal to the Provincial Court, he is unable to
appeal further to the Judicial Committee.

An appeal also lies direct to the King in Council from
the Court constituted under the Public Worship Regulation
Act, 1874.

Appeals from the Ecclesiastical Courts of the Channel
Islands are heard and determined by the Bishop of Win-
chester in person, and that See being vacant, by the Arch-
bishop of Canterbury in person. Canon 56. (It is doubtful
whether there is a further appeal to Judicial Committee.)
See Dean of Jersey v. Rector of , 3 Moo. 232, 233.

In the Isle of Man, a local statute, 37 Viet. (Stat. Isle of
Man, vol. 4, p. 329), transferred the jurisdiction of the
Court of the Archdeacon to the Episcopal Court of Sodor
and Man, thus assimilating the practice to that of other
diocesan courts.

The general rule in ecclesiastical matters has been that
the appeal shall be asserted within fifteen days of the judg-
ment (h). This period has been adopted in the Rules of
1866 under the Church Discipline Act, 1843, in the Arches
Court of Canterbury, and in the Rules of 1879 under the
Public Worship Regulation Act. In the Rules under the

(e) Ecclesiastical Courts Commission, 1883, p. 180.

(/) See sect. 15.

(g) See sect. 4.

(h) This time is said to have been fixed on the analogy of the time
appointed for final appeals to the Archbishop by 24 Hen. VIII. c. 12,
s. 6. The appeal is asserted by giving notice of appeal Cf . Schultes
v. Hodgson (1822), 1 Add. at 108.

APPEALS FROM ECCLESIASTICAL COURTS. 401

Clergy Discipline Act, 1892, the time for giving notice of Clergy Disci-
appeal varies. Where the appeal is in respect of any matter Pline Act-
of law, the period is twenty-eight days (r. 60). Where
leave is required to appeal in respect of the facts, the
petition for leave must be presented within fifteen days
(r. 61) ; and where leave is required to appeal from an
interlocutory judgment, the application must be made on
the judgment being given (r. 62) ; in either case the notice
of appeal must be given within fourteen days of leave
given (r. 63). Rule 90 provides for the enlargement of
time by the Appellate Court, though the application for the
same is not made till after the expiration of the time
limited ; but in order to obtain enlargement of time to
appeal a perfect explanation must be given of the delay
incurred. Where the petitioner lodged his petition for
leave to appeal six months after an order of deprivation
had been made, and alleged poverty as a reason for delay,
the Board dismissed the petition. Lee v. Atherton, (1904)
A. C. 805.

The appeal in any case must be prosecuted, according to
usage, within a year and a day from the date of the sentence
appealed from ; and under the Clergy Discipline Act, 1892,
the appeal must be set down for hearing not less than
fourteen and not more than twenty-eight days after notice of
appeal is given (r. 70). Under this latter Act appeal
cannot be brought from an interlocutory judgment which
has not the effect of a definitive judgment on the merits
except by leave of the court. This differs from the old
practice of the Canon law (3 Bl. Com. 56), according to
which, if a party proceeds to take any step in the cause
after a grievance complained of, he is held to have
perempted or lost his appeal thereon.

The rules relating to the proceedings to be taken in the Appeal rules.
court appealed from under the Church Discipline Act, 1840, «
in the Arches Court of Canterbury, under the Public
Worship Regulation Act, 1874, and under the Clergy
Discipline Act, 1892, in appeals to the King in Council are
set out below.

The above-mentioned rules under the Church Discipline
Act, 1840, and the Public Worship Regulation Act, 1874,
apply merely to the steps to be taken in the court appealed

p.c. 26

402 THE PRACTICE OF THE PRIVY COUNCIL.

from. The steps in such appeals in the Appellate Court are
wholly governed by the Ecclesiastical and Maritime Rules
of 1865. (See above, pp. 374 ff.) The rules for appeals
under the Clergy Discipline Act, 1892, refer to the steps
both in the court appealed from and in the Appellate Court.
Rule 74 thereof conflicts with the practice under the general
rules of 1865. It is, therefore, in appeals under the Clergy
Discipline Act, 1892, not the practice to lodge either a
printed or a written case. The lodging of any case or
appendix, written or printed, appears to be clearly dispensed
with by rule 74 of the Rules of 1892. To that extent the
procedure in regard to such appeals prescribed by the Rules
of 1865 has been altered, the object being to reduce the
costs.

The statutory The Clergy Discipline Act, 1892, does not render a
ai?pea?f clergyman liable to be tried thereunder in respect of any

question of doctrine or ritual. With regard to proceedings
instituted under the Church Discipline Act, 1840, for such
offences an appeal as of right is given " to any party who
shall think himself aggrieved by the judgment pronounced"
(sect. 15). There, however, is "no appeal from any inter-
locutory decree or order not having the force or effect of a
definitive sentence, and thereby ending the suit in the Court
of Appeal of the province, save by the permission of the
judge of such court" (sect. 13). Under the Clergy
Discipline Act, 1892 (which by sect. 10 (1) thereof includes
the offences referred to in the sections of the earlier Church
Discipline Act which is re-enacted in the schedule of the
new statute, the right of appeal is given to either party,
but only from a judgment of a Consistory Court in respect
of a matter of law (sect. 10 (1)). The defendant may
appeal from a judgment in respect of the facts, by leave
of the Appellate Court, but he must first satisfy that court
that there is zprimd facie case. If the application appears
idle and frivolous, leave will be refused. Therefore, where
ample evidence was before the Chancellor of the Consistory
Court to justify the decision, and it was only suggested
that some evidence would be forthcoming which might to
some extent qualify the evidence given before, and no
definite proposition was put before the Judicial Com-
mittee, and no definite evidence suggested, and the defen-

APPEALS FROM ECCLESIASTICAL COURTS. 403

dant, being a competent witness, did not tender himself
for examination nor deny the facts alleged against him,
and no new fact was alleged which ought to re-open
the inquiry, their lordships were of opinion that leave to
appeal ought to be refused. Bran* v. Wood- (Worcester
Con. Ct.), L. R,, (1901) A. C. 338. An appeal against any
interlocutory judgment, although it has not the force or
effect of a definite sentence on the merits, may be allowed
by leave of the court. An appeal under the Act may be to
the Provincial Court or to the Sovereign in Council at the
option of the appellant, but if to the Provincial Court the
decision is final (sect. 10 (4) ). The appeal stays proceedings
(sect. 10 (5) ).

Under the Public Worship Regulation Act, 1874, an
appeal as of right lies from every judgment of the judge, or
monition issued in accordance therewith (sect. 9). The
judge may, on application in any case, suspend the execution
of such monition pending an appeal, if he shall think fit.

In any proceedings under the Public Worship Regulation
Act either party may appear by himself in person, or by
counsel, or by any proctor or solicitor (sect. 11, P. W. Act).
The special case settled by the judge or a copy of the short-
hand written notes, as the case may be, shall be transmitted
to the Privy Council, for the purposes of the appeal. No
further evidence will be allowed on appeal to the Sovereign
in Council without the permission of the tribunal hearing
the appeal (sect. 12).

The lodging of the case and the issue of other proceedings The Registry,
under the Rules of 1865 now takes place at the Council
Office. The duties of His Majesty's Registrar in Ecclesiastical
and Admiralty causes, which used to be performed by His
Majesty's Registrar at the Admiralty Registry of the Royal
Courts of Justice are, by an Order in Council, 1904, hence-
forth to be discharged during His Majesty's pleasure by the
Registrar of the Privy Council for the time being.

The Benefices Act, 1898 (Gl & 62 Viet. c. 48), creates a The court
new Ecclesiastical Court, consisting of an archbishop and a
judge of the Supreme Court, who shall be nominated from
time to time for the purposes of the Act. The court con-
stituted under the Act shall be a Court of Record, and its
proceedings held in public, and at any hearing the legal

26-2

404

THE PRACTICE OF THE PRIVY COUNCIL.

Application
of practice
under 3 & 4
Will. IV. c. 41.

Proceedings
on appeal in
the Appellate
Court.

rules of evidence shall prevail. The judge is to decide
questions of law and fact in respect of matters to which the
Act applies, and the archbishop is to give judgment
accordingly, and that judgment shall be final. The judgment
is, therefore, apparently made that of the archbishop, and
the court a court "of the archbishops of this realm." If
this is so, an appeal would seem to lie by virtue of the
25 Hen. VIII. c. 19. As no provision is made for the pro-
cedure in such an appeal, it would seem to be open to an
aggrieved party to make an application for special leave to
appeal, since the prerogative right to admit an appeal
cannot be taken away except by express words.

The execution of a sentence is suspended during the
appeal. Cf. the " Inhibition," Form No. 2 in the Appendix
to the Eules in the Order in Council of December 11, 1865
(p. 381).

No special reference of an ecclesiastical appeal is now neces-
sary. See 6 & 7 Viet. c. 38, s. 11, and 7 & 8 Viet. c. 69, s. 9.

The general practice under the 3 & 4 Will. IV. c. 41,
applies to such appeals. (See Appendix A.) Thus the
Judicial Committee may take evidence viva voce, or may
direct the depositions of witnesses to be taken, or may remit
causes for rehearing, or order issues to be tried. The Judicial
Committee possess extensive powers for the examination of
witnesses by commission, upon interrogatories and other-
wise. Matters may be referred to the registrar (sect. 17)
The President of the Council may issue a sulpcma ad testifi-
candum or duces tecum (sect. 19). Sect. 20 deals with the
time within which appeals shall be brought.

In ecclesiastical as in other appeals, the petition of appeal
has now to be lodged with the Registrar of the Council, who-
has taken the place of the old Registrar of Ecclesiastical
and Maritime Appeals. The registrar, on the application
of the solicitor, issues an inhibition, forbidding the court
below to proceed further in the cause, and a citation to the
respondent to appear, and a monition for process, i.e., a
requisition to transmit the proceedings had in the court
appealed from (*).

In ordinary practice the inhibition issues as a matter of

(i) Rule 4 of 1865. See supra, pp. 375 ff.

APPEALS FROM ECCLESIASTICAL COURTS. 405

course, and the appeal stands dismissed, unless the inhibition,
etc. are taken out within one month from the date of the
petition of appeal being referred (j).

When the Privy Council approve of the sentence of the Remission of
judge below, they usually send back or remit the whole £oUrt below
cause to him with all its incidents, to be by him carried
into execution ; or they may, if they please, though they
remit the cause, retain the taxation and enforcement of the
costs (&). A remit takes place more especially if anything
still remains to be done ; e.g., where (the appeal having
only been interposed from a grievance) the principal cause
requires to be proceeded with, or where taxation of costs
will follow upon a definitive sentence (/). The remission is
contained in an instrument under the seal of the Superior
Court, and, on its being filed in the court below, authorises
the judge to proceed according to the tenor of former Acts,
and to continue the proceedings as if no appeal had been
brought from his decree. Where the Judicial Committee
think proper to reverse the decree appealed from, they some-
times, but very rarely, retain the principal cause. Where Retention,
the Court of Arches reversed the sentence of the Consistorial
Court, and the Judicial Committee affirmed the sentence of
the Court of Arches, the cause was retained before the
Judicial Committee (in). A cause is also sometimes retained
where the decision of the court below is affirmed. But
when a cause is retained the Privy Council becomes, in
effect, a court of original jurisdiction, and proceeds with the
cause just as a court of first instance ought to do. There
is, however, no appeal from its decisions, and for this
reason it is unwilling to retain any cause, whether upon an
affirmance or a reversal, where the effect of its retention
would be to make the Privy Council decide it in the first
instance, and to deprive it of the benefit of the discussion
and judgment in the court below (n). If the appeal be
from a grievance, and it be proved to the satisfaction of the

(;') Rule 5 of 1865. As to the effect of a caveat entered against the

t an inhibition in ecclesiastical matters, see Herbert v. H. (1817),

2 Phill. 444, and Poole v. Bishop of London (1861), Brod. & Frem.

Cas. 176.

(k) 2 Browne, Civ. & Adm. Law, 441.
(1) Douglas v. Smith and Brown, 3 Knapp, 1.
(m) Harrison v. Harrison (Arches Ct. 1842), 4 Moo. 96.
(n) Head v. Sanders (Arches Ct. 1842), 4 Moo. 186.

406

THE PRACTICE OF THE PRIVY COUNCIL.

One judg-
ment.

Appeal from
Colonial
Ecclesiastical
Courts.

Appellate Court, or admitted by the appellee, the cause is
retained, and the Appellate Court goes on and hears the
whole merits (o). Where the question raised (p) in appeal
was, whether the judge of the Arches Court was right in
admitting an appeal to himself from the Consistorial Court
of London (it being alleged that the person appealing from
the Consistorial Court was disabled from appealing because
he was in contempt), the Judicial Committee holding that
the judge of the Arches Court was right, did not remit the
cause to him to try on appeal, but, considering it important
that the case should be heard soon, advised Her Majesty to
retain it before themselves.

In Martin v. Maclconochie (February 22, 1882), in remitting
the case to the Court of Arches to complete the decree by
directing such lawful and canonical censure as it deemed
just, the Judicial Committee declared, following Head v.
Sanders (4 Moo. 197), that " except under peculiar circum-
stances, a Court of Final Appeal ought not to decide any
cause in the first instance, as it ought to have the benefit of
the discussion and judgment in the court below, and there
ought not to be an original judgment pronounced from
which there is no appeal."

As in appeals other than ecclesiastical, the practice of the
Judicial Committee, following the ancient procedure laid
down as to the Privy Council in the Order in Council of
February 20, 1027, is to deliver but one judgment without
disclosing " how the voices and opinions went." (q)

An appeal lies from Ecclesiastical Courts in the possessions
of the Crown to the King in Council as well as from such
courts within the realm. (See 25 Hen. VIII. c. 19, s. 4,
supra ; and Re Bishop of Natal (1864), 3 Moo. (KS.) 116.)
In all such appeals the rules of 1865 govern the proceedings
in the final Appellate Court.

(o) 1 Browne, Civ. & Adm. Law, 497 ; 2 Browne, Civ. & Adm. Law,
439.

(p) Harrison v. Harrison, supra, 4 Moo. 96.

(q) An Order in Council of February 4, 1878, re-affirming the
ancient rule and practice was issued. As to the controversy caused
by the late Lord Chief Baron in the Folkestone Ritual Case (Rid$-
(lale v. Clifton (1877), 2 P. D. 276), divulging that he differed from
the judgment delivered by the Lord Chancellor as that of the
Judicial Committee, see Lord Selborne's pamphlet, " The Judicial
Procedure in the Privy Council, 1891," and that bv W. F. Finlason
(1878).

APPEALS FROM ECCLESIASTICAL COURTS. 407

The appeal lies only from some judicial determination, and
it was held recently that an appeal will not lie from the
act of a colonial bishop in withdrawing the nomination
of a colonial chaplaincy within his diocese, since there was
no litigation which the bishop had jurisdiction to detemine.
Ward v. Bishop of Mauritius ( 95 L. T. 85).

under the Appellate Jurisdiction Art, 1*7C>, for the Rules for

Attendance of Bisho-ps as Assessors at Ecclesiastical bl^°Ps

1 . . J J- acting as

Appeals (r). assessors.

I. — The Archbishop of Canterbury, the Archbishop of
York, and the Bishop of London shall be ex officio assessors
of the Judicial Committee of Her Majesty's Privy Council
on the hearing of ecclesiastical cases according to the follow-
ing rota, that is to say, the Archbishop of Canterbury from Rota for
this day until January 1, 1878 ; the Archbishop of York Archbishops
from January 1, 1878, till January 1, 1879 ; and the Bishop and TTork, UFy
of London from January 1, 1879 until January 1, 1880, and and Bishop
so on by a similar rotation for the period of one year each. c

II. — The other bishops of dioceses within the provinces of Other
Canterbury and York shall attend as assessors of the Judi- blsh°Ps-
cial Committee on the hearing of ecclesiastical cases,
according to the following rota, that is to say, from this day
until January 1, 1878, the four bishops who on this day are
the four junior bishops for the time being, seniority for the
purpose of this Order to be reckoned from the date of
appointment to the episcopal see ; from January 1, 1878,
till January 1, 1879, the four bishops who on January 1,
1878, shall be the four bishops next in order of seniority ;
and from January 1, 1879, till January 1, 1880, the four
bishops who on January 1, 1879, shall be the four bishops
next in order of seniority, and so on by a similar rotation
until the senior bishop for the time being is reached, when
the rotation shall be carried back to and again commenced
with the junior bishop.

III. — In the event of any one, or more than one Vacancy,
vacancy occurring in the office of ecclesiastical assessor,
the vacancy or vacancies shall be filled up by the person
or persons then next according to the rotations aforesaid.

(r) See 39 & 40 Viet. c. 59, s. 14, and p. 11, supra.

408

THE PRACTICE OF THE PRIVY COUNCIL.

Three
assessors to
be present at
hearing.

Appeal to be
prosecuted
within one
month,

otherwise
proceedings
to continue.

IV. — A summons to attend on the hearing of every
ecclesiastical case about to be heard before the said Judicial
Committee shall be issued to the five ecclesiastical assessors
for the time being ; and no case shall be heard before the
said Judicial Committee unless there are at least three of
such assessors present at the hearing : Provided that the
assessors present at the commencement of the hearing of
any such case shall continue to be the assessors for that case
until it shall be fully heard and disposed of, although their
term of office, according to the rotation aforesaid, may in
the meantime have expired : Provided also that in the
event of the death, resignation, or absence, by reason of
illness or other unavoidable cause, of any one of the asses-
sors present at the commencement of the hearing, the
hearing of the case may proceed so long as at least two
assessors are present.

AECHES COURT OF CANTERBURY.

BULES and KEGULATIONS to be observed in
appeals from all causes, suits or proceedings,
instituted in the Arches Court of Canterbury
under the Church Discipline Act, 1840 (s).

Rule 23. In the event of an appeal from any decree (t),
or order made by the judge, such appeal must be asserted
either at the time of such decree or order being made, or by
notice left in the registry within fifteen days from the time
of such decree or order, and the said appeal must be duly
prosecuted within one month from the date of such appeal
being so asserted.

Rule 24. If no such appeal be prosecuted within the time
limited by the preceding rule, the proceedings shall be con-
tinued, or the decree of the court carried into effect, as if
there had been no appeal, unless notice be previously lodged
in the registry that the proctor asserting the appeal intends
to make application to the judge for an extension of time
which application may be made in Chambers.

(s) The Act of 1840 " now remains only for doctrinal cases, simony,
breaches of official duty, some cases difficult to classify, and ritual."
Phill. Ecclesiastival Law, 2nd. ed. (1895), p. 1013.

(t) For an appeal from a refusal to administer the sacrament.
Jenkins v. Cook (clerk) (Court of Arches, 1876), 1 P. D. 80.

APPEALS FROM ECCLESIASTICAL COURTS. 409

RULES made (u) under Public Worship Regulation
Act (37 (C- 38 Viet. c. 85), issued by Order in
Council, February 22, 1879.

Sect. 34. A party desirous of appealing from a judgment Appeal to be
or monition (x) shall deliver into the provincial registry a
notice of appeal within fifteen days of the service of the days,
monition, in a case where a monition is issued, and in any
other case within fifteen days of the date of the judg-
ment ; and thereupon the certified notes of evidence or
the special case settled by the judge (as the case may be)
shall be transmitted by the provincial registrar with the other
documents to the appeal registry in manner required by the
Court of Appeal.

A form of notice of appeal is given in Appendix,
No. 22 (y).

(u) These rules govern the steps to be taken on asserting the appeal
in the court appealed from. The steps to be taken in the Privy
Council are governed by the Rules of 1865 made under 6 & 7 Viet.
c. 38, s. 15.

(x) Where the petitioner sought relief from an inhibition pro-
hibiting the use of vestments, etc., pending an appeal on the merits,
the Judicial Committee ordered the decree to be executed pending the
appeal, except the removal of a crucifix from a screen. Ridsdale
v. Clifton (Court of Arches, 1876), 1 P. D. 383 ; 2 P. D. 276.

(y) APPENDIX.

FORM No. 22.
Appeal from Judgment or Monition.

In the Court of Canterbury [or York].

In the matter of the representation of C. D., made in pursuance of
the provisions of the Public Worship Regulation Act, 1874, in which
the Reverend E. F., clerk, rector [or vicar, <fcc.] of I. K., in the diocese
of B., is the person complained of.

Whereas at the hearing of the above representation the Right Hon.
, the Judge of the said Court, did, on the day of ,

18 , order (here state tenor of judgment) [or issue a monition com-
manding the said E. F. to, &c.] (here state tenor of monition).

And whereas the said montion was served on the said E. F. on the

day of , 18 .

Now, therefore, take notice that I, the said C. D. [or E. F.], hereby
appeal from the said order [or monition] to Her Majesty in Council.
Dated this day of , 18 .

(Signed) C. D.

or
To X. Y., Provincial Registrar. E. F.

410

THE PRACTICE OF THE PRIVY COUNCIL.

Suspension of
execution
pending
appeal.

Suspension pending Appeal of the Execution of a Monition.

35. A respondent shall be at liberty, at any time after
a notice of appeal has been given, to apply for a summons
against the complainant to show cause why the execution of
a monition should not be suspended pending the appeal. At
the hearing of such summons the judge will require such
evidence and make such order as he shall think fit.

36. A suspension, if ordered by the judge, shall be
issued from the provincial registry upon the application
of the respondent, and the delivery of a prsecipe for the
same.

Forms of suspension and praecipe are given in Appendix,
Nos. 23 and 24 (z).

Order of
suspension of
monition.

(2) FORM No. 23.
Suspension of Monition pending Appeal.

James Plaisted, Baron Penzance, Official Principal of the Arches
Court of the Province of Canterbury [or of the Chancery Court of the
Province of York], to E. F., clerk, rector [or vicar,&c.] of I. K. in the
diocese of B., greeting : Whereas in the matter of a representation
made b}^ C. B. in pursuance of the provisions of the Public Worship
Regulation Act, 1874, in which the said E. F. is the person complained
of, a monition was issued by us [or by the Right Reverend A., Bishop
of B.] bearing date the day of , 18 , and duly served on

the said E. F., commanding him to, &c. [here state tenor of monition] :
And whereas the said E. F. has duly appealed from the said monition
to Her Majesty in Council : Now we do hereby, on the application of
the said E. F., and for certain good reasons to us made known, suspend
the execution of such monition pending the said appeal, or until we
shall otherwise order.

Given at the day of , 18 .

(Signed) X. Y.,

Registrar.

FORM No. 24.
Praecipe for Suspension of Monition pending Appeal.

In the Court of Canterbury [or York].

Praecipe. In the matter of the representation of C. D. made in pursuance of

the provisions of the Public Worship Regulation Act, 1874, in which
the Rev. E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B.,
is the person complained of.

Praecipe for suspension of monition pending appeal, in pursuance of
the order of the Right Honourable James Plaisted, Baron Penzance,
the Judge of the said Court, made on the day of ,1 •

Dated the day of , 18 .

(Signed) E. F.
To X. Y., the Provincial Registrar.

APPEALS FROM ECCLESIASTICAL COURTS.
RULES UNDER THE CLERGY DISCIPLINE ACT, 1892.

1 titles as to Appeal.
GO. Where either party desires to appeal against the Time for

judgment of the Consistory Court in respect of any matter

of law, notice of the appeal must be given in manner pro- [Form 64.;

vided by these rules not more than twenty-eight clear (a)

days after the day on which the judgment was given.

Gl. Where a defendant desires to petition for leave to Time for
appeal against a judgment of the Consistory Court in petition to
respect of the facts, he must lodge a petition for leave to facts.
appeal in manner provided by these rules (b) not more than [Form 65.]
fifteen clear (a) days after the day on which the judgment
was given.

Hi'. An application for leave to appeal from an inter- Application
locutory judgment of the Consistory Court under the Act appeaHrom
must be made at the time when the judgment is given. interlocutory

(!o. Where leave to appeal is granted either from an inter- judgment,
lucutory judgment or from the judgment of the Consistory
Court in respect of the facts, notice of appeal must be given leare to
not more than fourteen clear (a) days after the day on which appeal is
the leave to appeal is granted. [Forms 66,

G4. Notice of appeal shall be given by — 67-]

(i.) lodging in duplicate at the registry of the Provincial Mode of
Court or Privy Council, as the case may be (in §v'
these rules referred to as the Appellate Court), a
notice of appeal stating the grounds of appeal ; and
(ii.) lodging with the registrar of the diocese from the
Consistory Court of which the appeal is brought, a
copy of the notice of appeal lodged at the registry of
the Appellate Court ; and
(iii.) serving a like copy of the notice of appeal on the

other party to the case.

65. A petition to the Appellate Court for leave to appeal Lodging of
shall be lodged at the' registry of the Appellate Court.
G6. A ground of appeal not stated in the notice of appeal

shall not be entertained by the Appellate Court except with appeal not
entertained

(a) By r. 94, the expression "clear days " is defined to mean i^^j!^
" exclusively both of the first and the last day."

(6) See r. 65, and sect. 4 (2) of the Clergy Discipline Act, 1892.

412

THE PKACTICE OF THE PRIVY COUNCIL.

Hearing of
petition for
leave to
appeal.
[Form 68.]

Hearing of
appeal in
respect of
facts.

Special pro-
visions as to
evidence in
Appellate
Court.

Setting down
of appeal for
hearing.
[Form 69.]

Notice of time
and place for
hearing
appeal.
[Form 70.]

Remission
of case to
Consistory
Court.

the consent of the opposite party, or by the leave of the
court, and the court may grant that leave on such terms as
to adjournment or otherwise as the court thinks fit.

67. A petition to the Appellate Court for leave to appeal
shall be heard by that court ex parte, but if the court on the
hearing consider that the prosecutor should have an oppor-
tunity of appearing, the court shall adjourn the further
hearing of the petition for the purpose, and the defendant
shall give notice of the adjournment to the prosecutor.

68. If an appeal is allowed in respect of the facts of the
case, the case shall, subject to these rules, be reheard by the
Appellate Court on the note of the case taken by the
Chancellor or by his direction, or on such other note of the
case as may be allowed by the Appellate Court.

69. The Appellate Court on any appeal as to the facts
may, if in the opinion of the court the justice of the case
requires it —

(a) summon any witness heard at the trial to give evidence

with respect to the case ; and

(b) order any new witness, not heard at the trial, to give

evidence with respect to the case.

70. — (1) An appellant shall, not less than fourteen and
not more than twenty-eight clear (c) days after giving notice
of appeal, set down the appeal for hearing by giving notice
to the registrar of the Appellate Court and the respondent
that the appeal is so set down for hearing.

(2) If at the expiration of twenty-eight clear (c) days
after a notice of appeal is given the appeal is not set down
for hearing, the appeal shall, subject to any order of the
Appellate Court, stand dismissed.

71. If in an Appellate Court no regular cause list is pub-
lished, the registrar of that court shall give seven clear (c)
days' notice of the time and place for hearing a case, where
the case is an appeal which has been set down for hearing,
both to the appellant and respondent, and, where the case is
an application for leave to appeal, to the applicant.

72. Where on the decision of an appeal any sentence is
to be passed or any further proceeding taken in the case,

APPEALS FROM ECCLESIASTICAL COURTS. 413

the Appellate Court shall remit the case to the Consistory
Court for the purpose.

73. The registrar of the Appellate Court shall give notice Notice to
of any order of the Appellate Court on an appeal from the registrar of
Consistory Court to the registrar of the diocese from the order on
Consistory Court of which the appeal is brought, and, if the appeal,
case is remitted from the Appellate to the Consistory Court ^2.]"

to be further dealt with, the registrar of the diocese shall
submit the case to the Chancellor, and the Chancellor shall
fix a time and place for the further hearing of the case, and
cause the registrar to give seven clear days1 notice of the
time and place fixed to the prosecutor and defendant.

74. In an appeal to the Appellate Court under this Act, it No written
shall not be necessary to prepare or to bring into the ^aTe^
registry of the Appellate Court any written statement or necessary.
printed copies of the case (d) with reference to which the

appeal is brought.

FORM No. 64.

Notice of Appeal on Point of Law.
Clergy Discipline Act, 1892.

[Complaint Xo. .]
To the registrar of (l)

I, A. B., prosecutor [or C. D., defendant], hereby give
notice that I appeal to the Provincial Court of [or to

Her Majesty the Queen in Council], from the judgment
of the Consistory Court of the diocese of , on the trial

of the above matter held on the day of ,

in respect of the following matters of law (2).

On the ground that the judgment of the Court was wrong
in law in respect of those matters.
Dated this day of , 18 .

A. B., Prosecutor
[or C. D., Defendant].

[X.B. — A ground of appeal must be stated in the notice
of appeal, if it is to be entertained by the Appellate Court.]

1 Insert Provincial Court or Privy Council, as case may be.
- Insert grounds of appeal.

(d) It has not been the practice under these rules to lodge any
printed or written copies of an appendix or case as required by the
Rules of 1865. The object of this rule ia to save expense.

414 THE PRACTICE OF THE PRIVY COUNCIL.

FORM No. 65.
Petition for Leave to Appeal in respect of Facts.

(Heading as in Form No. 64)
To the registrar of (l)

I, C. D., defendant, hereby give notice that I petition the
Provincial Court of [or Her Majesty the Queen in

Council], for leave to appeal from the judgment of the
Consistory Court of the diocese of at the. trial of the

above matter, held on the day of , in respect of

the following facts (2).

On the ground that the judgment of the Court in respect
.of those facts was not in accordance with the true facts.
Dated this day of, 18 .

C. D., Defendant.

1 Insert Provincial Court or Privy Council, as case may be.

2 State facts alleged to have been wrongly found.

FORM No. 66.

Notice of Appeal where Leave to Appeal on Facts has
been granted.

(Heading as in Form No. G4.)

To the registrar of the (l)

I, C. D., defendant, hereby give notice that whereas leave
has been given to me by the Provincial Court of [or

by Her Majesty the Queen in Council] to appeal to that Court
[or to Her Majesty the Queen in Council] from the judgment
of the Consistory Court of the diocese of on the trial

of the above matter held on the day of in re-

spect of the following facts [ ].

I accordingly appeal from the said judgment to the said
Provincial Court of [or to Her Majesty the Queen in

Council] on the ground that that judgment was not in
accordance with the true facts.

Dated this day of , 18 .

C. D., Defendant.

[N.B. — A ground of appeal must be stated in the notice
of appeal, if it is to be entertained by the Appellate Court.

1 Insert Provincial Court or Privy Council, as case may be.

APPEALS FROM ECCLESIASTICAL COURTS. 415

FORM No. 67.

Notice of Appeal from Interlocutory Judgment.
(Heading as in Form No. 64.)

To the registrar (*)

I, A. B., prosecutor [or C. D., defendant] hereby give
notice that I appeal to the Provincial Court of [or to

Her Majesty the Queen in Council] from the following
interlocutory judgment of , (2) on the following

grounds ; leave to appeal having been granted me by

at the time when the said judgment was given.
Dated this day of , 18 .

A. B., Prosecutor,
[or C. D., Defendant].

[N.B. — A ground of appeal must be stated in the notice
of appeal, if it is to be entertained by the Appellate Court.]

1 Insert Provincial Court or Privy Council, as case may be.

2 Insert particulars of judgment.

FORM No. 68.

Notice of Adjournment of Hearing of Petition for Leave
to Appeal on Facts.

(Heading as in Form No. G4.)

To A. B., prosecutor,

Take notice that the (J) have adjourned the hearing

of my petition for leave to appeal from the judgment of the
Consistory Court of the diocese of at the trial of the

above matter, held on the day of , in respect of

the following facts , till the day of in

order that you should have an opportunity of appearing at
the hearing of the petition.

Dated this day of , 18 .

C. D., Defendant.

1 Insert Provincial Court or Privy Council, as case may be.

416 THE PRACTICE OF THE PRIVY COUNCIL.

FORM No. 69.
Notice of Appeal being set down for Hearing.

(Heading as in Form No. 64.)

To K. L., registrar of (l) [or to A. B., prosecutor,

or to C. D., defendant].

I, A. B., prosecutor [or C. D., defendant] hereby give you
notice that my appeal in the above matter is set down for
hearing.

Dated this day of , 18 .

A. B., Prosecutor
[or C. D., Defendant].

1 Insert Provincial Court or Privy Council, as case may be.

FORM No. 70.

Notice of Time and Place of Hearing in Appellate Court.
(Heading as in Farm No. 64.)

To A. B., prosecutor [or C. D., defendant].
The hearing of the appeal [or the petition to appeal] in
the above matter will take place at , on day,

the day of , at the hour of in the

noon

Dated this day of , 18 .

K. L., Kegistrar of the Provincial Court of
[or Registrar of the Privy Council].

FORM No. 71.

Notice to Registrar of Consistory Court of Order of
Appellate Court on Appeal.

(Heading as in Form No. 64.)

To E. F., registrar of the Consistory Court of the
diocese of

Take notice that the Provincial Court of [or Her

Majesty the Queen in Council] has ordered that the appeal

APPEALS FROM ECCLESIASTICAL COURTS.

of in the above matter should be allowed [or dismissed]

[or has ordered on the hearing of the appeal that the case
should be remitted to your Court for the purpose of ].

Dated this day of , 18 .

K. L., Registrar of the Provincial Court of
[or of the Privy Council].

417

FORM No. 72.

Notice of holding of Court for hearing Case remitted on
Appeal.

(Heading as iti Form No. 64.)

To A. B., prosecutor [or C. D., defendant].
Take notice that the above case has been remitted from
the Provincial Court of [or by Her Majesty the Queen in
Council] to this Court for the purpose of , and that

the further hearing of the case for that purpose will take
place at , on day, the day of , at

the hour of , in the noon.

Dated this day of , 18 .

E. F., Registrar.

P.C. 27

APPENDIX A.

IMPERIAL STATUTES DEALING WITH THE
JURISDICTION AND PRACTICE OF THE
JUDICIAL COMMITTEE.

I.— 3 & 4 WILL. IV. c. 41 (1833).

Ail Act far the letter Administration of Justice in His
Majesty's Privy Council.

Whereas by virtue of an Act passed in a session of Parlia-
ment of the second and third years of the reign of His
present Majesty, intituled " An Act for transferring the 2 & 3 Will. IV.
Powers of the High Court of Delegates, loth in Ecclesiastical c- 92<
and Maritime Causes, to His Majesty in Council" it was
enacted, that from and after the first day of February, one
thousand eight hundred and thirty-three, it should be lawful
for every person who might theretofore, by virtue either of
an Act passed in the twenty-fifth year of the reign of King 25 Hen. VIII.
Henry the Eighth, intituled " The Submission of the Clergy c- 19<
and Restraint of Appeals" or of an Act passed in the eighth
year of the reign of Queen Elizabeth, intituled, "For the 8 Eliz. c. 5.
avoiding of Tedious Suits in Civil and Marine Causes" have
appealed or made suit to His Majesty in his High Court of
Chancery, to appeal or make suit to the King's Majesty, his
heirs or successors, in Council, within such time, in such
manner, and subject to such rules, orders and regulations
for the due and more convenient proceeding, as should seem
meet and necessary, and upon such security, if any, as His
Majesty, his heirs and successors, should from time to time
by Order in Council direct : AND WHEREAS, by letters
patent under the Great Seal of Great Britain, certain persons,
members of His Majesty's Privy Council, together with
others, being judges and barons of His Majesty's Courts of
Record at Westminster, have been from time to time
appointed to be His Majesty's Commissioners for receiving,

27—2

420

THE PRACTICE OF THE PRIVY COUNCIL.

Certain per-
sons to form
a committee,
to be styled
"The Judi-
cial Com-
mittee of
the Privy
Council."

hearing, and determining appeals from His Majesty's Courts
of Admiralty in causes of prize : And whereas, from the deci-
sions of various Courts of Judicature in the East Indies,
and in the plantations, colonies and other dominions of His
Majesty abroad, an appeal lies to His Majesty in Council :
And whereas matters of appeal or petition to His Majesty in
Council have usually been heard before a committee of the
whole of His Majesty's Privy Council, who have made a
report to His Majesty in Council, whereupon the final judg-
ment or determination hath been given by His Majesty :
And whereas it is expedient to make certain provisions for
the more effectual hearing and reporting on appeals to His
Majesty in Council and on other matters, and to give such
powers and jurisdiction to His Majesty in Council as herein-
after mentioned : Be it therefore enacted by the King's most
excellent Majesty, by and with the advice and consent of
the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the
same, the President for the time being of His Majesty's
Privy Council, [the Lord High Chancellor of Great Britain
for the time being] (a), and such of the members of His
Majesty's Privy Council as shall from time to time hold any
of the offices following, that is to say, the office of Lord
Keeper or First Lord Commissioner of the Great Seal of
Great Britain, [Lord Chief Justice or Judge of the Court of
King's Bench, Master of the Rolls, Vice- Chancellor of
England, Lord Chief Justice or Judge of the Court of Common
Pleas, Lord Chief Baron or Baron of the Court of
Exchequer, [Judge (b) of the Prerogative Court of the Lord
Archbishop of Canterbury,'] Judge of the High Court of Admi-
ralty, and Chief Judge of the Court in Bankruptcy,] (a) and
also all persons, members of His Majesty's Privy Council,
who shall have been President thereof [or held the office of
Lord Chancellor of Great Britain (a)] or shall have held any
of the other offices hereinbefore mentioned, shall form a
committee of His Majesty's said Privy Council, and shall be

(a) These words in brackets are repealed by Statute Law Revision
Act (No. 2), 1888 (51 & 52 Viet. c. 57).

(6) These words in brackets are repealed by Statute Law Revision
Act, 1874 (37 & 38 Viet. c. 35).

APPENDIX A. 421

styled " The Judicial Committee (c) of the Privy Council" :
Provided nevertheless, that it shall be lawful for His
Majesty from time to time, as and when he shall think fit,
by his sign manual, to appoint any two other persons, being
privy councillors, to be members of the said committee.

[II. And be it further enacted, thai from and after the first Appeals from
day of June, one thousand eight hundred and thirty-three, ^^iraM- ^

appeals or applications in prize suits and in all other suits or vice-Admi-

proceedings in the Courts of Admiralty, or Vice- Admiralty >'a% Courts
Courts, or any other Court in the plantations in America, ami '

other His Majesty's dominions or elsewhere abroad, which may t° the King in

now, by virtue of any law, statute, commission or usage, be (

made to the High Court of Admiralty in England, or to the

Lords Commissioners in prize cases, shall be made to His

Majesty in Council, and not to tlie said High Court of Admi-

ralty in England or to such commissioners as aforesaid ; and

such appeals shall be made in the same manner and form and

within such time wherein such appeals might, if this Act

had not been passed, have been made to the said High Court of

Admiralty or to the Lords Commissioners in prize cases

respectively ; and that all laws or statutes now in force ivith

respect to any such appeals or applications shall apply to any

appeals to be made in pursuance of this Act to His Majesty in

Council (d).~\

III. [And be it further enacted, thaf] (e) all appeals or Appeals to
complaints in the nature of appeals whatever, which either *^ns "^
by virtue of this Act, or of any law, statute or custom, from sentence
may be brought before His Majesty or His Majesty in of any judge,
Council from or in respect of the determination, sentence, referrecfto
rule or order of any Court, judge or judicial officer, and all the com-
such appeals as are now pending and unheard, shall from
and after the passing of this Act be referred by His Majesty
to the said Judicial Committee of his Privy Council, and that

(d) The above sect. 2 is repealed by the Colonial Courts of Admiralty
Act, 1890 (53 & 54 Viet. c. 27), s. 18, and Sched. 2, as respects any
British possession as from the commencement of the Act (see sect.
16) in that possession, and as respects any courts out of His
Majesty's dominions as from the date of any Order applying that
Act (sect. 12).

(e) These words in brackets are repealed by Statute Law Revision
Act (No. 2), 1888 (51 & 52 Viet. c. 57).

422

THE PRACTICE OF THE PRIVY COUNCIL.

His Majesty
may refer any
other matters
to committee.

No matter to
be heard un-
less in pre-
sence of four
members of
the com-
mittee.

If His Majesty
directs the
attendance of
any member
who is a judge,
the other
judges of the
Court to

such appeals, causes and matters shall be heard by the said
Judicial Committee, and a report or recommendation thereon
shall be made to His Majesty in Council for his decision thereon
as heretofore, in the same manner and form as has been
heretofore the custom with respect to matters referred by
His Majesty to the whole of the Privy Council or a com-
mittee thereof (the nature of such report or recommendation
being; always stated in open Court) (/).

IV. [And be it further enacted, that} (g) it shall be lawful
for His Majesty to refer to the said Judicial Committee for
hearing or consideration any such other matters (h) whatso-
ever as His Majesty shall think fit, and such committee shall
thereupon hear or consider the same, and advise His Majesty
thereon in manner aforesaid.

V. [And be it further enacted, that} (g) no matter shall be
heard, nor shall any order, report or recommendation be
made, by the said Judicial Committee, in pursuance of this
Act, unless in the presence of at least [four} (i) members of
the said committee ; and [that} no report or recommenda-
tion shall be made to His Majesty unless a majority of the
members of such Judicial Committee present at the
hearing shall concur in such report or recommendation :
Provided always [that] nothing therein contained shall pre-
vent His Majesty, if he shall think fit, from summoning any
other (/) of the members of his said Privy Council to attend
the meetings of the said committee.

VI. [And be it further enacted, that] (g) in case His
Majesty shall be pleased, by directions under his sign
manual, to require the attendance at the said committee for
the purposes of this Act of any member or members of the
said Privy Council who shall be a judge or judges of the
Court of King's Bench, or the Court of Common Pleas, or of

(/) But the Lords are not to disclose the opinions of the members
of the Board. Order in Council, February 20, 1627, s. 9.

(g) The words in brackets are repealed by Statute Law Revision
Act. 1888.

(h) The Judicial Committee have no power to place any limit as
to the matters which may be referred to them by the Crown.
ScMumberger's Patent (1853), 9. Moo. 1.

(*') 14 & 15 Viet. c. 83, s. 16, substitutes three for four, exclusive
of the Lord President.

( j) Other members. Cf . Moore 's Report of the Gorham Case, where
prelates attended by Her Majesty's direction.

APPENDIX A. 428

the Court of Exchequer, such arrangements for dispensing which he

, , . , . , ,. belongs shall

with the attendance of such judge or judges upon his or arrange with

their ordinary duties during the time of such attendance at regard to the
the Privy Council as aforesaid shall be made by the judges
of the Court or Courts to which such judge or judges shall
belong respectively in regard to the business of the Court
and by the judges of the said three Courts, or by any eight
or more of such judges, including the chiefs of the several
Courts, in regard to all other duties, as may be necessary and
consistent with the public service.

VII. [And be it enarted that] (k) it shall be lawful for the Committee
said Judicial Committee, in any matter which shall be £J5Je^e
referred to such committee, to examine witnesses by word of rivd race, or
mouth (and either before or after examination by deposi-

tion), or to direct that the depositions (I) of any witness
shall be taken in writing by the registrar of the said Privy
Council to be appointed by His Majesty as hereinafter men-
tioned, or by such other person or persons, and in such
manner, order and course, as His Majesty in Council, or the
said Judicial Committee shall appoint and direct ; and that
the said registrar and such other person or persons so to be
appointed shall have the same powers as are now possessed
by an examiner of the High Court of Chancery or of any
Court Ecclesiastical.

VIII. [ And be it enacted, that] (/:) in any matter which shall Committee
come before the said Judicial Committee it shall be lawful for ™* ^cular
the said committee to direct that such witnesses shall be witnesses to
examined or re-examined, and as to such facts as to the said be examined,

3.HQ 3iS to finv

committee shall seem fit, notwithstanding any such witness particular
may not have been examined, or no evidence may have been facts« and
given on any such facts in a previous stage of the matter ; causes for
and it shall also be lawful for His Majesty in Council, on the rehearing,
recommendation of the said committee, upon any appeal, to
remit the matter which shall be the subject of such appeal
to the Court from the decision of which such appeal shall have
been made, and at the same time to direct that such Court
shall rehear such matter, in such form, and either generally

(k) The words in brackets are repealed by Statute Law Revision
Act, 1888.

(I) " Formal proofs " may be taken and reported on by the clerks
of the Privy Council 7 & 8 Viet. c. 69, s. 8.

424

THE PRACTICE OF THE PRIVY COUNCIL.

Witnesses to
be examined
on oath, and
to be liable to
punishment
for perjury.

Committee
may direct
feigned

and may, in
certain cases,
direct deposi-
tions to be
read at the
trial of the
issue ;

or upon certain points only (n), and upon such rehearing
take such additional evidence, though before rejected, or
reject such evidence before admitted, as His Majesty in
Council shall direct ; and further, on any such remitting or
otherwise, it shall be lawful for His Majesty in Council to
direct that one or more feigned issue or issues shall be tried
in any Court in any of His Majesty's dominions abroad, for
any purpose for which such issue or issues shall to His
Majesty in Council seem proper.

IX. [And be it enacted, tJiaf] (o) every witness who shall
be examined in pursuance of this Act shall give his or her
evidence upon oath, or if a Quaker or Moravian upon solemn
affirmation, which oath and affirmation respectively shall be
administered by the said Judicial Committee and registrar (p),
and by such other person or persons as His Majesty in
Council or the said Judicial Committee shall appoint ; and
that every such witness who shall wilfully swear or affirm
falsely shall be deemed guilty of perjury, and shall be
punished accordingly.

X. [And be it enacted, that] (o) it shall be lawful for the
said Judicial Committee to direct one or more feigned issue
or issues to be tried in any Court of common law, and either
at bar, before a judge of assize, or at the sittings for the
trial of issues in London or Middlesex, and either by a
special or common jury, in like manner and for the same
purpose as is now done by the High Court of Chancery.

XI. [And be it enacted, tJiaf] (o) it shall be in the
discretion of the said Judicial Committee to direct that, on
the trial of any such issue, the depositions already taken of
any witness who shall have died, or who shall be incapable
to give oral testimony, shall be received in evidence ; and
further, that such deeds, evidences and writings shall be

(ft) Cf. Wilkinson v. Wilson (1853), 8 Moo. 459. Where the
appellant, a mortgagee in possession of a ship, was entitled to pro-
ceeds of sale after payment of seamen 's wages, and had not claimed
payment of the proceeds to himself, the cause was remitted to the
Court of Admiralty to enable the appellant to apply to have the
proceeds paid out to him. The Neptune, 3 Knapp, 94.

(o) The words are repealed by Statute Law Revision Act,
1888.

(p) See further, 16 & 17 Viet. c. 85, infra, as to appointment, and
powers, and duties of registrar.

APPENDIX A. 425

produced, and that such facts shall be admitted as to the
said committee shall seem fit.

XII. [And be it enacted, that(q) it shall be lawful for the and may
said Judicial Committee to make such and the like orders ™a^tofSj!,
respecting the admission of persons, whether parties or mission of
others, to be examined as witnesses upon the trial of any witnesses ;
such issues as aforesaid, as the Lord High Chancellor or

the Court of Chancery has been used to make respecting the
admission of witnesses upon the trial of issues directed by the
Lord Chancellor or the Court of Chancery.

XIII. [And be it enacted, thaf] (q) it shall be lawful for the and may

said Judicial Committee to direct one or more new trial or direct new

.,, i . . , trials of issues,

new trials oi any issue, either generally or upon certain points

only ; and that in case any witness examined at a former trial
of the same issue shall have died, or have, through bodily or
mental disease or infirmity become incapable to repeat his
testimony, it shall be lawful for the said committee to direct
that parol evidence of the testimony of such witness shall be
received.

XIV. And whereas, by an Act passed in the thirteenth Powers of
year of His late Majesty King George the Third, and intituled J36^°ndn'
*' An Act for establishing certain Regulations for the better i* \Viii. iv.
Management of the, Affairs of the East India Company, as well c- 22» sna11
in India as in Europe," and by an Act passed in the first judicial0
year of the reign of His present Majesty, and intituled "An Committee.
Act to enable the Courts of Law to order the Examination of
Witnesses upon Interrogator m and otherwise" certain powers

are given to certain Courts therein mentioned to enforce,
and provisions are made for the examination of witnesses
by commission, upon interrogatories and otherwise ; [be it
therefore further enaded, that] (q) all the powers and provisions
contained in the two last-mentioned Acts, or either of them,
shall extend to and be exercised by the said Judicial Committee
in all respects as if such committee had been therein named
as one of His Majesty's Courts of law at Westminster.

XV. [And be it enacted, thaf] (q) the costs incurred in the Costs to be in

prosecution (r) of any appeal or matter referred to the said th.e discretion
r ,. . , ~ . * of the corn-

Judicial Commitee, and of such issues as the same com- mittee.

(q) The words are repealed by Statute Law Revision Act, 1888.
(r) See further provisions 0 & 7 Viet. c. 38, s. 12, infra, p. 434, as
to costs of party defending a decree or intervening.

426

THE PRACTICE OF THE PRIVY COUNCIL.

Decrees to be
enrolled.

Committee
may refer
matters to
registrar in
the same
manner as
matters are
by Court of
Chancery
referred to a
master.

His Majesty
may appoint
registrar.

Attendance
of witnesses,
and produc-
tion of papers,
etc., may be
compelled by
subpoana.

mitfcee shall under this Act direct, shall be paid by such
party or parties, person or persons, and be taxed by the afore-
said registrar (s) or such other person or persons, to be
appointed by His Majesty in Council or the said Judicial Com-
mittee, and in such manner as the said committee shall direct.

XVI. [And he it further enacted, that] (t) the orders or
decrees of His Majesty in Council made, in pursuance of
any recommendation of the said Judicial Committee, in any
matter of appeal from the judgment or order of any Court
or judge, shall be enrolled for safe custody in such manner,,
and the same maybe inspected and copies thereof taken under
such regulations, as His Majesty in Council shall direct.

XVII. [And be it further enacted, that] (t) it shall be
lawful for the said committee to refer any matters to be
examined and reported on to the aforesaid registrar, or to
such other person or persons as shall be appointed by His
Majesty in Council or by the said Judicial Committee, in
the same manner and for the like purposes as matters are
referred by the Court of Chancery to a master of the said
Court ; and [that} for the purposes of this Act the said
registrar and the said person or persons so to be appointed
shall have the same powers and authorities as are now
possessed by a master in Chancery (s).

XVIII. [And be it further enacted, that} (t) it shall be
lawful for His Majesty, under his sign manual, to appoint
any person to be the registrar of the said Privy Council, as
regards the purposes of this Act, and to direct what duties-
shall be performed by the said registrar.

XIX. [And be it further enacted, that} (t) it shall be
lawful for the President for the time being of the said Privy
Council to require the attendance of any witnesses, and the
production of any deeds, evidences or writings, by writ to
be issued by such President in such and the same form, or
as nearly as may be, as that in which a writ of subpoena ad

(s) The registrar referred to is the Registrar of the Privy Council.
As to taxation in Ecclesiastical and Admiralty matters, see 6 & 7
Viet. c. 38, s. 12, and note thereto. Under the powers conferred
by this section a great deal of what is generally known as chamber
work is performed by the registrar, such as issuing the committee's
orders, calling on parties to enter an appearance, to lodge a printed
case, orders for taxation of costs, and so on.

(t) The words are repealed by Statute Law Revision Act, 1888.

APPENDIX A.

427

testificandum or subpoena duces tecum is now issued by His
Majesty's Court of King's Bench at Westminster ; and
that every person disobeying any such writ so to be issued
by the said President shall be considered as in contempt of
the said Judicial Committee, and shall also be liable to such
and the same penalties and consequences as if such writ had
issued out of the said Court of King's Bench, and may be
sued for such penalties in the said Court.

XX. \_And be it further enacted, thaf] (u) all appeals to Time of
His Majesty in Council shall be made within such times appealing,
respectively within which the same may now be made,

where such time shall be fixed by any law or usage ; and
where no such law or usage shall exist, then within such
time as shall be ordered by His Majesty in Council ; and
[///«/], subject to any right subsisting under any charter or
constitution of any colony or plantation, it shall be lawful
for His Majesty in Council to alter any usage as to the time
of making appeals, and to make any order respecting the
time of appealing to His Majesty in Council.

XXI. [And be it further enacted, that] (u) the order or Decrees on
decree of His Majesty in Council on any appeal from the

order, sentence, or decree of any court of justice in the East to be carried
Indies, or of any colony, plantation, or other His Majesty's {J^K^f01^8
dominions abroad, shall be carried into effect in such Council shall
manner, and subject to such limitations and conditions as direct.
His Majesty in Council shall, on the recommendation of the
said Judicial Committee direct ; and it shall be lawful for His
Majesty in Council on such recommendation, by order, to
direct that such court of justice shall carry the same into effect
accordingly, and thereupon such court of justice shall have
the same powers of carrying into effect and enforcing such
order or decree as are possessed by or are hereby given to
His Majesty in Council : Provided always, that nothing in Saving of
this Act contained shall impeach or abridge the powers,
jurisdiction or authority of His Majesty's Privy Council as except as
heretofore exercised by such council, or in anywise alter the
constitution or duties of the said Privy Council, except so far
as the same are expressly altered by this Act, and for the
purposes aforesaid.

(w) The words are repealed by Statute Law Revision Act, 1888.

428

THE PRACTICE OF THE PRIVY COUNCIL.

Orders made
on such ap-
peals to have
effect not-
withstanding
death of par-
ties, etc.

His Majesty
may make
orders for
regulating
the mode, etc.
of appeals.

Power of
enforcing
decrees.

XXIII. [And be it enacted, that] (x) in any case where
any order shall have been made on any such appeal as last
aforesaid, the same shall have full force and effect notwith-
standing the death of any of the parties interested therein ;
but that in all cases where any such appeal may have been
withdrawn or discontinued, or any compromise made in
respect of the matter in dispute before the hearing thereof,
then the determination of His Majesty in Council in respect
of such appeal shall have no effect.

XXIV. [And be it further enacted, that] (x) it shall be
lawful for His Majesty in Council from time to time to
make any such rules and orders as may be thought fit for
the regulating the mode, form and time of appeal to be
made from the decision of the courts of judicature in India
or elsewhere to the eastward of the Cape of Good Hope (y)
(from the decisions of which an appeal lies to His Majesty in
Council), and in like manner from time to time to make
such other regulations for the preventing delays in the
making or hearing such appeals, and as to the expenses
attending the said appeals, and as to the amount or value of
the property in respect of which any such appeal may be made.

XXVIII. [And be it enacted, that] (x) the said Judicial
Committee shall have and enjoy in all respects such and
the same power of punishing contempts and of compelling
appearances (z), and [that] His Majesty in Council shall
have and enjoy in all respects such and the same powers of
enforcing judgments, decrees and orders as are now exercised
by the High Court of Chancery or the Court of King's
Bench (and both in personam and in rem,) [or as are given
to any Court Ecclesiastical ly an Act of Parliament passed in
a session of Parliament of the second and third years of the
reign of His present Majesty, intituled " An Act for enforcing

(x) The words are repealed by Statute Law Revision Act, 1888.

(y) "Eastward of Cape of Good Hope" As to appeals from
colonies and possessions to the westward and elsewhere, and as to
other appeals generally, see sect. 20. It will be noticed that in
appeals from India and elsewhere to the eastward the power of His
Majesty is absolute, but that the power of the Crown under this Act
to alter the time of making appeals from colonies generally is subject
to rights subsisting under existing charters or constitutions.

(z) See supra, sect. 21, as to enforcement of the order of decree of
His Majesty in Council by the courts abroad. For further provisions
in all causes of appeals from Ecclesiastical Courts, 6 & 7 Viet. c. 38,
s. 7, infra, p. 432. So much of this section as is in italics is repealed.

APPENDIX A. 429

the Process upon Contempts in the Courts Ecclesiastical of

England and Ireland " ; find that all such powers as are

(jiren to Courts Ecclesiastical, if of punishing contempts or of ZfyZW'dl.IV.

compelling appearances, shall be exercised by the mid Judicial c' ' '

, an'! if of enforcing decrees and orders shall be
<ed by His Majesty in Council, in such and the same
manner as the poicers in and by such Act of Parliament
yiren, and shall be of as much force and effect as iftfie same
had been thereby expressly given to the said committee or to His
Majesty in Counnl (Repealed by G & 7 Viet. c. 38, s. 6.)]

XXX. [And be it enacted, that~\ (a} two members of His Two retired
Majesty's Privy Council who shall have held the office of ^{^j01
judge in the East Indies or any of His Majesty's dominions judges at-
beyond the seas, and who, being appointed for that purpose tending the
by His Majesty, shall attend (!>} the sittings of the Judicial mittoe shall "
Committee of the Privy Council, shall severally be entitled receive an

to receive over and above any annuity granted to them in a lce>
respect of having held such office as aforesaid, the sum of
four hundred pounds for every year during which they shall
so attend as aforesaid, as an indemnity for the expense
which they may thereby incur ; and such sum of four
hundred pounds shall be chargeable upon and paid out of
the consolidated fund of the United Kingdom of Great
Britain and Ireland.

XXXI. Provided always, [and be it enacted, that~] (a) Saving as to
nothing herein contained shall be held to impeach or render treaties with
void any treaty or engagement already entered into by countries

or on behalf of His Majesty or be taken to restrain His appointing

nr • f j- -j.1 f certain per-

Majesty from acceding to any treaty, with any foreign sons to £ear

prince, potentate or power, in which treaty it shall be prize appeals,
stipulated that any person or persons other than the said
Judicial Committee shall hear and finally adjudicate appeals
from His Majesty's Courts of Admiralty in causes of
prize (c), but that the judgments, decrees and orders of

(a) The words are repealed by Statute Law Revision Act, 1888.

>uch members of the Judicial Committee are so for all
purposes. %

(c) This provision would cover the reference of prize appeals to
the proposed International Prize Court which it is intended to set up
at The Hague. The Naval Prize Bill of 1910 made provision for the
hearing of prize appeals by a new tribunal, the Supreme Priyj-
Court, to be chosen from the Judicial Committee of the Privy Council,
and an appeal was given thence to the International Prize Court.

430

THE PRACTICE OF THE PRIVY COUNCIL.

such other person or persons so appointed by treaty shall be
of the same force and effect of which they would respec-
tively have been if this Act had not been passed.

II.— THE JUDICIAL COMMITTEE ACT, 1843.
(6 & 7 VICT. c. 38.)

An Act to make, further Regulations for facilitating the
hearing of Appeals and other Matters by the Judicial
Committee of the Privy Council.

WHEREAS it has been found expedient to make further
regulations for hearing and making report to Her Majesty
in appeals and other matters referred to the Judicial Com-
mittee of the Privy Council, and for the more effectual
appointment of surrogates (d) in ecclesiastical and mari-
time (e) causes of appeal, and for making orders or decrees
incidental to such causes of appeal, and for the punishment
of contempts, and compelling appearances and enforcement
of judgments, orders, and decrees of Her Majesty in
Council, or of the said Judicial Committee, or their surro-
gates, in such causes of appeal : Be it enacted by the
Queen's most excellent Majesty, by and with the advice and
consent of the Lords spiritual and temporal, and Commons,
in this present Parliament assembled, and by the authority
Appeals, etc. of the same, that in any appeal, application for prolongation
by1 noTless*^ or confirmation of letters patent, or other matter referred or
than three hereafter to be referred by Her Majesty in Council to the
^Judicial Judicial Committee of the Privy Council, it shall be lawful
Committee for Her Majesty, by order in Council or special direction

of the Privy Under her royal sign manual, having regard to the nature of

Council under ., ., J n 8, . 5 „ .,

a special the said appeal or other matter, and in respect of the same

order of nofc requiring the presence of more than three (/) members

ajes y. ^ ^ S3i{fr committee, to order that the same be heard, and

(d) Acts and proceedings before surrogates were abolished by
rule 31, supra, p. 380, of the Order in Council as to Ecclesiastical and
Maritime Causes, 1865.

(e) The meaning of the term " ecclesiastical and maritime cause
of appeal " is extended by sect. 17, infra.

(/) Four members of the Judicial Committee were previously
required. Supra, 3 & 4 Will. IV. c. 41, s. 5. Three members now
constitute a quorum.

APPENDIX A.

•when so. ordered it shall be lawful that the same shall be
accordingly heard by not less than three of the members of the
said Judicial Committee, subject to such other rules as are
applicable, or under this Act may be applicable, to the
hearing and making report on appeals and other matters
by four or more of the members of the said Judicial
Committee (y).

II. And be it enacted, that in respect of all incidents, Powers of
emergents, dependents and things adjoined to, arising out J^J^^1*1
of or connected with appeals from any Ecclesiastical Court, and their

[or from any Admiralty or Vice-Admiralty Court.} (h) save surrogates
.*••:. • i__j in respect to

in giving a definitive sentence, or any interlocutory decree appeals from

having the force and effect of a definitive sentence,) the said Ecclesiastical
Judicial Committee and their surrogates 0") shall have full
power, subject to such rules, orders and regulations as shall
from time to time be made by the said Judicial Committee,
(with the approval of Her Majesty in Council,) to make all
such interlocutory orders and decrees, and to administer all
such oaths and affirmations, and to do all such things as
may be necessary, or the judges of the courts below appealed
from or their surrogates in the cases appealed, or the judges
of the courts appealed to or their surrogates, [or the Lords
Commissioners of Appeals in Prize Causes or their surro-
yate$,~\ (h) and the judges delegate or their condelegates
under commissions of appeal under the Great Seal in eccle-
siastical and maritime causes of appeal, would respectively
have had before an Act passed in the third year of the reign
of His late Majesty, intituled "An Act for transferring the 2&3Will. JV.
Powers of the Hujh Court of Delegates, both in Ecclesiastical c- 92t
and Maritime Causes, to His Majesty in Council" and
another Act passed in the following session of Parliament,

(g) See Lopez v. Burskm, The Guiana (Sierra Leone, 1843), 4 Moo.
300, and 14 & 15 Viet. c. 83, s. 16, infra. Three are now sufficient
in any case.

(h) The words between the brackets [ ] in sects. 2, 3, 5, 7, 12, and
15 are repealed by The Colonial Courts of Admiralty Act, 53 & 54 Viet,
c. 27, s. 18, and Sched. 2, as respects any British possession as from
the commencement of the Act (see sect. 16) in that possession, and
as respects any Courts out of Her Majesty's dominions as from the
date of any order applying the Act (s. 12).

(»') Act and proceedings before surrogates were abolished by rule 31,
of the Order in Council as to Ecclesiastical and Maritime Causes,
1865.

432

THE PRACTICE OF THE PRIVY COUNCIL.

3ic4WiU.IV.
c. 41.

Who to be
surrogates
and examiners
of the Judicial
Committee in
ecclesiastical
[and Admi-
ralty]
appeals.

Manner of
conducting
appeals before
the Judicial
Committee.

Punishing
contempts,
compelling
appearances,
enforcing
judgments,
etc. in causes
of appeal.

intituled "An Act for the better Administration of Justice in
His Majesty's Privy Council" were passed.

III. And be it enacted, that the surrogates and examiners
of the Arches Court of Canterbury [and the High Court of
Admiralty of England] (j) and such persons as shall from
time to time be appointed surrogates (/£) or examiners of the
said courts, shall be by virtue of this Act surrogates and
examiners respectively of the Judicial Committee of the
Privy Council in all causes of appeal from ecclesiastical
courts.

V. And be it enacted, that, subject to such rules and
regulations as may from time to time be made by the
said Judicial Committee of the Privy Council with
the approval of Her Majesty in Council, and save and
in so much as the practice thereof may be varied by the
said Acts (7) of the reign of His late Majesty or by this
Act, the said causes'of appeal (m) to Her Majesty in Council
shall be commenced within the same times, and conducted
in the same form and manner, and by the same persons and
officers, as if appeals in the same causes had been made to
the Queen in Chancery.

VII. [And le it enacted, that~\ for better punishing con-
tempts, compelling attendances, and enforcing judgments
of Her Majesty in Council, and all orders and decrees of the
said Judicial Committee or their surrogates, in all causes of
appeal from Ecclesiastical Courts [and from Admiralty or
Vice- Admiralty Courts'] (j), Her Majesty in Council and
the said Judicial Committee and their surrogates shall have
the same powers, by attachment and committal of the person
to any of Her Majesty's gaols, and subsequent discharge of
any person so committed, as by any statute, custom or usage
belong to the judge of the High Court of Admiralty of
England (n) ; and the said Judicial Committee shall have
the same immunities and privileges as are conferred on the

(j) See note (A), ante.

(k) See note (»), ante.

(Z) 2 & 3 Will IV. c. 92, and 3 & 4 Will. IV. c. 41.

(ra) Said causes of appeal Cf. sects. 1 and 3. This refers to
" causes of appeal ' ' from Ecclesiastical Courts mentioned in sect. 3 ,
and not to " appeals and other matters " mentioned in sect. 1

(n) Cf. the general powers, supra, 3 & 4 Will. IV. c. 41, s. 28.

APPENDIX A. 433

judge of the High Court of Admiralty of England under

an Act passed in the fourth year of the reign of Her Majesty,

intituled " An Act to improve the Practice and extend the 3 & 4 Viet.

Jurisdiction of the High Court of Admiralty of England" as c- 65<

fully as if the same had been thereby expressly given to the

said Judicial Committee.

IX. And be it enacted, that all inhibitions, citations, Inhibitions,
monitions, and other instruments incidental to or arising

out of such causes of appeal shall be issued in the name of name, and
Her Majesty and under seal of Her Majesty in ecclesiastical °* forc£
and maritime (o) causes, and shall be of full authority in all the°British
places throughout the dominions of Her Majesty (o). dominions.

X. And be it enacted, that in all appeals in ecclesias- Monitions
tical and maritime (o) causes to Her Majesty in Council it for payments
shall be lawful for Her Majesty in Council, and the said g^ry of The

Judicial Committee or their surrogates, at the petition of Admiralty

any person interested in the same to decree monitions for ortteTB^etc*

the transmission (p) of any sum or sums of money respecting

which any order or decree may be made, or any questions

may be depending arising out of such causes, and the

proceeds of all ships or vessels, goods and cargoes respecting

which any appeals may be depending, into the registry of

the High Court of Admiralty and Appeals, for the benefit

of the person or persons who may be ultimately entitled

thereto, or for payment thereof to the person to whom the

same may be lawfully due (o).

XI. And be it enacted, that it shall be lawful for Her All appeals
Majesty, by Order in Council, to direct that all causes of from. E9crle- 3

,„ -n i ..-,,>, ._ , . ... T_. siastical [and

appeal from Ecclesiastical Courts land from the vice- Admiralty}

Admiralty Court of the Cape of Good Hope, and all Vice- Courts may

Admiralty Courts to the westward thereof^ (q), in which the the Judicial

appeal and petition of reference to Her Majesty shall have been Committee by

lodged in the registry of the High Court of Admiralty and |£u°rc(j1er in
Appeals within twelve calendar months from the giving or

(<t) The section is repealed, "so far as relates to maritime causes,"
by Colonial Courts of Admiralty Act, 1890 (53 & 54 Viet. c. 27),
s. 18, and Sched. 2.

(p) Cf. Barton v. The Queen (Vice- Admiralty, Gibraltar, 1843),
2 Moo. 19, as to neglect by a judge to obey snch a monition. Cf.
The Neptune, 3 Knapp, 94.

(q) These courts are now abolished.

P.O. 28

434

THE PRACTICE OF THE PRIVY COUNCIL.

Costs may be
awarded by
the Judicial
Committee
and taxed.

Custody of
records, etc.
of the Court
of Delegates
and Appeals.

pronouncing of any order, decree or sentence appealed from,
shall be referred to the Judicial Committee of the Privy
Council, and the said Judicial Committee and their surro-
gates (r) shall have full power forthwith to proceed in the
said appeals, and the usual inhibition and citation shall be
decreed and issued, and all usual proceedings taken, as if
the same had been referred to the said Judicial Committee
by a special order of Her Majesty in Council in each cause
respectively (s).

XII. And be it declared and enacted, that as well the
costs of defending any decree or sentence appealed from as
of prosecuting any appeal, or in any manner intervening in
any cause of appeal, and the costs on either side, or of any
party, in the court below, and the costs of opposing any
matter which shall be referred to the said Judicial Com-
mittee, and the costs of all such issues as shall be tried by
direction of the said Judicial Committee respecting any
such appeal or matter, shall be paid by such party or parties,
person or persons, as the said Judicial Committee shall
order, and that such costs shall be taxed as in and by the
said Act for the better administration of justice in the Privy
Council is directed (t), respecting the costs of prosecuting
any appeal or matter referred by Her Majesty under the
authority of the said Act, save the costs arising out of any
ecclesiastical or maritime (u) cause of appeal which shall be
taxed by the registrar hereinafter named, or his assistant
registrar.

XIV. And be it enacted that all records, muniments,
books, papers, wills and other documents remaining in the
registry of the High Court of Admiralty and Appeals,
appertaining to the late High Court of Delegates and
Appeals for Prizes, shall be and remain in the custody and
possession of the said registrar of Her Majesty in ecclesias-
tical and maritime causes.

(r) See above as to abolition of Acts of surrogates.

(s) See Lopez v. Burslem (Sierra Leone, 1843), 4 Moo. 310, n. The
Judicial Committee now proceeds with the hearing without any
special order when any petition of appeal is lodged with the clerk of
the Privy Council. 7 & 8 Viet. c. 69, s. 9, infra.

(t) 3 & 4 Will. IV. c. 41, s. 15.

(tt) Repealed by Colonial Courts of Admiralty Act, 1890 (53 & 54
Viet. c. 27), s. 18, and Sched. II.

APPENDIX A.

435

XV. And be it enacted that it shall be lawful for the Judicial
said Judicial Committee from time to time to make such empowered to
rules, orders and regulations respecting the practice and make rules,

mode of proceeding in all appeals from Ecclesiastical

[and Admiralty and V'ice- Admiralty] (x) Courts, and the mode of pro-

conduct and duties of the officers and practitioners therein, £eede1a11f ^c

and to appoint such officer or officers as may be necessary for

the execution of processes under the said seal of Her Majesty,

and in respect to all appeals and other matters referred to

them, as to them shall seem fit, and from time to time to

repeal or alter such rules, orders or regulations : Provided Proviso.

always, that no such rules, orders or regulations shall be of

any force or effect until the same shall have been approved

by Her Majesty in Council.

XVII. And be it enacted, that in this Act all words Definition
denoting a male person shall be taken to include a female ° terms-
also, and all words denoting one person or thing shall be
taken to include also several persons or things, unless a
contrary sense shall clearly appear from the context ; and
that the words " Arches Court of Canterbury," used in this " Arches
Act, shall be construed to extend to such court as shall
exercise the jurisdiction of the said court or be substituted
for the same ; and that wherever the words " Ecclesiastical " Ecclesias-
Court" have been used in this Act the same shall be tical Court"
construed to extend to such court as shall exercise the
jurisdiction or any part of the jurisdiction exercised by any
Ecclesiastical Court or be substituted for the same ; and the
words " ecclesiastical and maritime cause of appeal " shall " Ecclesias-
be construed to extend to causes appealed from Ecclesiastical ^rltime
Courts and such courts as shall exercise the jurisdiction or cause of
any part of the jurisdiction exercised by any Ecclesiastical aPPea1-"
Court or be substituted for the same.

(x) The words in italics are repealed by 53 & 54 Viet. c. 27, s. 18,
Sched. II. The result is that the Order in Council, December 11,
1865, supra. Part III., containing rules governing steps on appeal to
be taken in Privy Council from the courts mentioned in the brackets
no longer applies to Colonial Courts of Admiralty.

28—2

436

THE PRACTICE OF THE PRIVY COUNCIL.

3 & i Will. IV.
c. 41.

Her Majesty,
by Order in
Council, may
provide for
the admission
of appeals
from any
court in any
colony,
although

III. THE JUDICIAL COMMITTEE ACT, 1844.
(7 & 8 YICT. c. 69.)

An Act for amending an Act passed in the Fourth Year of
the Reign of His late Majesty, intituled " An Act for the
better Administration of Justice in His Majesty's Privy
Council ; " and to extend its Jurisdiction and Powers.

WHEREAS the Act passed in the fourth year of the reign
of His late Majesty, intituled "An Act for the better
Administration of Justice in His Majesty's Privy Council"
hath been found beneficial to the due administration of
justice : And whereas the Judicial Committee acting under
the authority of the said Acts hath been found to answer
well the purposes for which it was so established by Parlia-
ment, but it is found necessary to improve its proceedings
in some respects, for the better despatch of business, and
expedient also to extend its jurisdiction and powers : And
whereas by the laws now in force in certain of Her Majesty's
colonies and possessions abroad no appeals can be brought
to Her Majesty in Council for the reversal of the judgments,
sentences, decrees and orders of any Courts of Justice
within such colonies, save only of the Courts of Error or
Courts of Appeal within the same (y), and it is expedient
that Her Majesty in Council should be authorized to provide
for the admission of appeals from other Courts of Justice
within such colonies or possessions : Be it therefore enacted
by the Queen's most excellent Majesty, by and with the
advice and consent of the Lords spiritual and temporal, and
Commons, in this present Parliament assembled, and by the
authority of the same, that it shall be competent to Her
Majesty, by any order or orders to be from time to time for
that purpose made with the advice of her Privy Council, to
provide for the admission of any appeal or appeals to Her
Majesty in Council, from any judgments, sentences, decrees
or orders of any Court of Justice within any British colony

(y) In the case of Re Levien (Jamaica, 1855), 10 Moo. at p. 36, the
Judicial Committee expressed the view that this statute does not
apply to appeals from judgments on indictments tried on the civil
side of the Supreme Court, but only to nisi prius cases.

APPENDIX A. 437

or possession abroad, although such court shall not be a such court

Court of Error or a Court of Appeal within such colony or ^e^ Court of

possession ; and it shall also be competent to Her Majesty, Error or of

by any such order or orders as aforesaid, to make all such APpeai in

provisions as to Her Majesty in Council shall seem meet for and ma/"7 '

the instituting and prosecuting any such appeals, and for revoke such

carrying into effect any such decisions or sentences as Her °
Majesty in Council shall pronounce thereon : Provided
always, that it shall be competent to Her Majesty in Council
to revoke, alter and amend any such order or orders as
aforesaid as to Her Majesty iu Council shall seem meet :

Provided also, that any such order as aforesaid may be Orders may
either general and extending to all appeals to be brought
from any such Court of Justice as aforesaid, or special and
extending only to any appeal to be brought in any particular

case : Provided also, that every such general Order in General

Council as aforesaid shall be published in the London orders to be

Gazette within one calendar month next after the making F

thereof : Provided also, that nothing herein contained shall Nothing

be construed to extend to take away or diminish any power herein to

now by law vested in Her Majesty for regulating appeals to present 6

Her Majesty in Council from the judgments, sentences, powers for

decrees or orders of any Courts of Justice within any of appeals from

Her Majesty's colonies or possessions abroad. the colonies,

VIII. Provided always, and be it enacted, that in the case Judicial Com-
of any matter or thing being referred to the Judicial
Committee, it shall be lawful for the said committee to of Privy
appoint one or other of the clerks of the Privy Council to Cc|uncil to
take any formal proofs (2) required to be taken in dealing in meters'
with the matter or thing so referred, and shall if they so think referred to
tit, proceed upon such clerk's report to them as if such

formal proofs had been taken by and before the said Judicial
Committee.

IX. And be it enacted, that in case any petition of appeal Judicial Corn-
whatever shall be presented, addressed to Her Majesty in {Jjj^ mf^s
Council, and such petition shall be duly lodged with the addressed to

clerk of the Priw Council, it shall be lawful for the said Her Majesty
T T • , ^, • " , . in Council

Judicial Committee to proceed in the hearing and reporting without

(z) Depositions of witnesses should be taken in writing by the
registrar. 3 & 4 Will. IV. c. 41, s. 7, supra.

438

THE PRACTICE OF THE PRIVY COUNCIL.

special order
of reference,
if a general
order of
reference of
such appeals
to the com-
mittee for the
next twelve
months shall
have been
issued in
November.

General order
may be
revoked.

Special order
then required.

Judicial Com-
mittee may
on appeals
require copies
of notes of
evidence
taken and
reasons for
judgments
given in the
courts of any
colony, etc.

Judicial Com-
mittee may
make rules to
be binding
upon such
courts
requiring
judges' notes
of evidence,
reasons for
judgments,
etc.

upon such appeal, without any special Order in Council
referring the same to them, provided that Her Majesty in
Council shall have, by an Order in Council in the month of
November, directed that all appeals shall be referred to the
said Judicial Committee on which petitions may be presented
to Her Majesty in Council during the twelve months next
after the making of such order ; and that the said Judicial
Committee shall proceed to hear and report upon all such
appeals in like manner as if each such appeal had been
referred to the said Judicial Committee by a special order of
Her Majesty in Council : Provided always, that it shall be
lawful for Her Majesty in Council at any time to rescind
any general order so made ; and in case of such order being
so rescinded all petitions of appeal shall in the first instance
be preferred to Her Majesty in Council, and shall not be
proceeded with by the said Judicial Committee without a
special order of reference.

X. And be it enacted, that it shall be lawful for the said
Judicial Committee to make an order or orders, on any
court in any colony or foreign settlement, or foreign
dominion (a) of the Crown, requiring the judge or judges of
such court to transmit to the clerk of the Privy Council a
copy of the notes of evidence in any cause tried before
such court, and of the reasons given by the judge or
judges for the judgment pronounced in any case brought
by appeal or by writ of error before the said Judicial
Committee.

XI. And be it enacted, that it shall and may be lawful
for the said Judicial Committee to make any general rule or
regulation, to be binding upon all courts in the colonies and
other foreign settlements of the Crown, requiring the
judges' notes of the evidence taken before such court on
any cause appealed, and of the reasons given by the judges
of such court or by any of them, for or against the judg-
ment pronounced by such court ; which notes of evidence
and reasons shall by such court be transmitted to the clerk

(a) It will be noted that, in sect. 10, " foreign dominion of the
Crown " is mentioned, but omitted in sect. 11. In the latter section
the General Rule is said to be binding on the courts in the colonies
and foreign settlements, whereas an Order under sect. 10 will also be
binding on a court in a foreign dominion of the Crown.

APPENDIX A. 439

of the Privy Council within one calendar month next after
the leave given by such court to prosecute any appeal to
Her Majesty in Council; and such order of the said com-
mittee shall be binding upon all judges of such courts in the
colonies or foreign settlements of the Crown.

XII. And be it enacted, that in all causes of appeal to In cases of
Her Majesty in Council from Ecclesiastical Courts, [and JJ®^6
from Admiral/// or Vice- Admiralty Courts,'] (b) which now are Order of

or may hereafter be depending, in which any person duly Council in

. / , .. , , .Vr , f % ecclesiastical

momshed or cited or requested to comply with any lawful or maritime

order or decree of Her Majesty in Council, or of the Judicial causes per-
Committee of the Privy Council or their surrogates, made Acting Jf| i
before or after the passing of this Act, shall neglect or be punished
refuse to pay obedience to such lawful order or decree, or tem°t b"1"
shall commit any contempt of the process under the seal of sequestration.
Her Majesty in ecclesiastical and maritime causes (ft), it shall
be lawful for the said Judicial Committee or their surrogates
to pronounce such person to be contumacious and in con-
tempt, and, after he or she shall have been so pronounced
contumacious and in contempt, to cause process of seques-
tration (c) to issue under the said seal of Her Majesty against
the real and personal estate, goods, chattels and effects,
wheresoever lying within the dominions of Her Majesty, of
the person against or upon whom such order or decree shall
have been made, in order to enforce obedience to the same
and payment of the expenses attending such sequestration,
and all proceedings consequent thereon, and to make such
further order in respect of or consequent on such sequestra-
tion, and in respect to such real and personal estates, goods,
chattels and effects sequestrated thereby, as may be necessary,
or for payment of moneys arising from the same to the
person to whom the same may be due, or into the registry of
the High Court of Admiralty and Appeals, for the benefit of
those who may be ultimately entitled thereto.

(6) The words between the brackets " and so much of the rest of
the section as relates to maritime causes" are repealed by the
Colonial Courts of Admiralty Act, 1890 (53 & 54 Viet. c. 27), s. 18,
and Sched. 2.

440

THE PRACTICE OF THE PRIVY COUNCIL.

IV. REGISTRAR OF THE PRIVY COUNCIL.

3& 4 Will. IV
c. 41.

Registrar
may examine
witnesses
upon oath.

President of
the Council
may appoint
a person to
act for regis-
trar in his
absence.

(16 & 17 VICT. c. 85 (1853).)

An Act for removing Doubts as to the Powers of the Registrar
of Her Majesty's Privy Council to administer Oaths, and
for providing for the Performance of the Duties of such
Registrar in his Absence.

WHEREAS doubts are entertained as to the extent of the
powers of the Registrar of Her Majesty's Privy Council
appointed under an Act of the session holden in the third
and fourth years of King William the Fourth, intituled " An
Act for the better Administration of Justice in His Majesty's
Privy Council," for taking evidence and administering oaths ;
And whereas it would be for the public convenience if such
registrar were empowered to take affidavits and other evidence
and administer oaths in all matters pending before Her
Majesty in Council or before the Judicial Committee of the
Privy Council, and if provision were made for the appoint-
ment of a person to act in the absence of such registrar : Be
it therefore enacted by the Queen's most excellent Majesty,
by and with the advice and consent of the Lords Spiritual
and Temporal and Commons, in this present Parliament
assembled, and by the authority of the same, as follows :

I. It shall be lawful for the registrar for the time being of
Her Majesty's Privy Council appointed under the said Act, or
such other person or persons as shall be appointed for this
purpose by Her Majesty in Council or by the said Judicial
Committee, to examine witnesses and take affidavits and
depositions upon oath in all appeals, causes, and matters
whatsoever pending before Her Majesty in Council or
before the said Judicial Committee, and to administer oaths
accordingly.

II. In case of the absence of the said registrar it shall be
lawful for the President of Her Majesty's Privy Council to
appoint a person to act for the said registrar during such
absence, and such person while so acting shall have the same
powers in all respects as are vested in the said registrar.

APPENDIX A.

III. Nothing herein contained shall be taken to affect the Saving of the

power of Her Majesty under the said Act or otherwise, to powers of

direct or limit the duties to be performed by the said registrar, Her Majesty

or any other authority which might have been exercised by ^d the C1

Her Majesty or by her Privy Council or the said Judicial Judicial

Committee in case this Act had not been passed. Committee.

APPENDIX B.

THE JUDICIAL COMMITTEE RULES, 1908.

JURISDICTION AND PROCEDURE : GENERAL RULES AS TO
APPEALS.

WHEREAS there was this day read at the Board a representa-
tion from the Judicial Committee of the Privy Council in
the words following, viz. :

"The Lords of the Judicial Committee having taken
into consideration the Practice and Procedure in
accordance with which the general Appellate Juris-
diction of Your Majesty in Council is now exercised
and being of opinion that the Rules regulating the
said Practice and Procedure ought to be consolidated
and amended Their Lordships do hereby agree
humbly to recommend to Your Majesty that with a
view to such consolidation and amendment certain
Orders of Her late Majesty Queen Victoria in
Council regulating the said Practice and Procedure,
viz. the Orders in Council dated respectively the
llth day of August 1842 the 13th day of June 1853
the 31st day of March 1855 the 24th day of March
1871 and the 26th day of June 1873 and also the
Order of Your Majesty in Council dated the 20th
day of March 1905 amending the said Practice and
Procedure ought to be revoked and that the several
Rules hereunto annexed ought to be substituted
therefor."

His Majesty having taken the said representation into
consideration was pleased by and with the advice of His
Privy Council to approve thereof and to order as it is hereby
ordered that the said Orders in Council in the said repre-
sentation mentioned be and the same are hereby revoked
and that the rules hereunto annexed be substituted therefor.

A. W. FITZROT.

APPENDIX B.
ARRANGEMENT OF RULES.

RULE.

1. Interpretation.

Leave to appeal.

2. Leave to appeal generally.

Special Leave to appeal.

3. Form of petition for special leave to appeal.

4. Three copies of petition to be lodged together with

affidavit in support.

5. Time for lodging petition.

6. Security for costs and transmission of record.

7. General provisions.

8. Petitions for special leave to appeal in forma

pauperis.

9. Exemption of pauper appellant from lodging security

and paying office fees.

10. Exemption of unsuccessful petitioner for leave to

appeal in forma pauperis from payment of office
fees.

Record.

11. Record to be transmitted without delay.

12. Printing of record.

13. Number of copies to be transmitted, where record

printed abroad.

14. One certified copy to be transmitted, where record to be

printed in England.

15. Record printed partly abroad, partly in England.

16. Reasons for judgments to be transmitted.

17. Exclusion of unnecessary documents from record.

18. Documents objected to to be indicated.

19. Registration and numbering of records.

20. Inspection of record by parties.

21. Times within which a copy of a written record shall be

bespoken.

22. Notice of appearance by appellant.

23. Preparation of copy of record for printer.

THE PRACTICE OF THE PRIVY COUNCIL.

RULE.

24. Lodging copy of record for printing.

25. Special case.

26. Examination of proof of record and striking off copies.

27. Number of copies of record for parties.

28. How costs of printing record are to be borne.

Petition of Appeal.

29. Times within which petition shall be lodged.

30. Form of petition.

31. Service of petition.

Withdrawal of Appeal.

32. Withdrawal of appeal before petition of appeal has

been lodged.

33. Withdrawal of appeal after petition of appeal has been

lodged.

Non-prosecution of Appeal

34. Dismissal of appeal where appellant takes no step in

prosecution thereof.

35. Dismissal of appeal for non-prosecution after appel-

lant's appearance and before lodgment of petition
of appeal.

36. Dismissal of appeal for non-prosecution after lodgment

of petition of appeal.

37. Kestoring an appeal dismissed for non-prosecution.

Appearance ~by Respondent.

38. Time within which respondent may appear.

39. Notice of appearance by respondent.

40. Form of appearance where all the respondents do not

appear.

41. Separate appearances.

42. Non-appearing respondent not entitled to receive

notices or lodge case.

43. Procedure on non-appearance of respondent.

44. Respondent defending appeal in formd pauperis.

APPENDIX B. 445

Petitions generally.

RULK.

45. Mode of addressing petitions.

46. Orders on petitions which need not be drawn up.

47. Form of petition.

48. Caveat.

49. Service of petition.

50. Verifying petition by affidavit.

51. Petition for order of revivor or substitution.

52. Petition containing scandalous matter to be refused.

53. Setting down petition.

54. Times within which set-down petitions shall be heard.

55. Notice to parties of day fixed for hearing petition.

56. Procedure where petition is consented to or is

formal.

57. Withdrawal of petition.

58. Procedure where hearing of petition unduly delayed.

59. Only one counsel heard on a side in petitions.

Case.

GO. Lodging of case.
61. Printing of case.

Number of prints to be lodged.

63. Form of case.

64. Separate cases by two or more respondents.
Notice of lodgment of case.

66. Case notice.

67. Setting down appeal and exchanging cases.

Binding Records, etc.

68. Mode of binding records, etc., for use of Judicial

Committee,

69. Time within which bound copies shall be lodged.

Hearing.

Notice to parties of date of commencement of sittings ;
entering appeals for hearing.

446 THE PRACTICE OF THE PRIVY COUNCIL.

RULE.

71. Notice to parties of day fixed for hearing appeal.

72. Only two counsel heard on a side in appeals.

73. Nautical assessors..

Judgment.

74. Notice to parties of day fixed for delivery of judg-
ment.

Costs.

75. Taxation of costs.

76. What costs taxed in England.

77. Order to tax.

78. Power of taxing officer where taxation delayed through

the fault of the party whose costs are to be taxed.

79. Appeal from decision of taxing officer.

80. Amount of taxed costs to be inserted in His Majesty's

Order in Council.

81. Taxation on the pauper scale.

82. Security to be dealt with as His Majesty's Order in

Council determining appeal directs.

Miscellaneous.

83. Power of Judicial Committee to excuse from com-

pliance with Rules.

84. Amendment of documents.

85. Affidavits may be sworn before the Registrar of the

Privy Council.

86. Change of agent.

87. Scope of application of rules.

88. Mode of citation and date of operation.
Schedule A. Rules as to printing.

Schedule B. Countries and places referred to in rules 21,
29 and 34.

APPENDIX B. 447

THE JUDICIAL COMMITTEE RULES, 1908.

1. — (1) In these Rules, unless the context otherwise Interpreta-
requires : — tion>

Yppeal " means an appeal to His Majesty in Council ;
" Judgment" includes decree, order, sentence, or decision

of any court, judge, or judicial officer ;
" Record " means the aggregate of papers relating to an
appeal (including the pleading, proceedings, evidence
and judgments) proper to be laid before His Majesty
in Council on the hearing of the appeal ;
" Registrar " means the registrar or other proper officer
having the custody of the records in the court
appealed from ;
"Abroad" means the country or place where the court

appealed from is situate ;

*• Agent " means a person qualified by virtue of Her late
Majesty's Order in Council of March 6, 1896, to
conduct proceedings before His Majesty in Council
on behalf of another ;

" Party " and all words descriptive of parties to proceedings
before His Majesty in Council (such as " petitioner,"
" appellant,"' " respondent ") mean, in respect of all
acts proper to be done by an agent, the agent of the
party in question where such party is represented by
an agent ;

" Month " means calendar month ;
Words in the singular shall include the plural, and words

in the plural shall include the singular.
(2) Where by these rules any step is required to be taken
in England in connection with proceedings before His
Majesty in Council, whether in the way of lodging a
petition or other document, entering an appearance, lodging
security, or otherwise, such step shall be taken in the
registry of the Privy Council, Downing Street, London.

Leave to Appeal.

2. All appeals shall be brought either in pursuance of Leave to
leave obtained from the court appealed from, or, in the appeal
absence of such leave, in pursuance of special leave to g

448

THE PRACTICE OF THE PRIVY COUNCIL.

appeal granted by His Majesty in Council upon a petition
in that behalf presented by the intending appellant.

Form of
petition for
special leave
to appeal.

Three copies
of petition to
be lodged
together with
affidavit in
support.

Time for

lodging

petition.

Security for
costs and
transmission
of record.

General
provisions.

Petitions for
special leave
to appeal in
f or m& pau-
per is.

Special Leave to Appeal.

3. A petition for special leave to appeal to His Majesty
in Council shall state succinctly and fairly all such facts as
it may be necessary to state in order to enable the Judicial
Committee to advise His Majesty whether such leave ought
to be granted. The petition shall not travel into extraneous
matter, and shall deal with the merits of the case only so
far as is necessary for the purpose of explaining and sup-
porting the particular grounds upon which special leave to
appeal is sought.

4. The petitioner shall lodge at least three copies of his
petition for special leave to appeal together with the
affidavit in support thereof prescribed by Rule 50 hereinafter
contained.

5. A petition for special leave to appeal may be lodged at
any time after the date of the judgment sought to be
appealed from, but the petitioner shall, in every case, lodge
his petition with the least possible delay.

6. Where the Judicial Committee agree to advise His
Majesty to grant special leave to appeal, they shall, in
their report, specify the amount of the security for costs (if
any) to be lodged by the petitioner, and the period (if any)
within which such security is to be lodged and shall, unless
the circumstances of a particular case render such a course
unnecessary, provide for the transmission of the record by
the registrar of the court appealed from to the Registrar of
the Privy Council and for such further matters as the
justice of the case may require.

7. Save as by the four last preceding Rules otherwise
provided, the provisions of Rules 47 to 50 and 52 to 59 (all
inclusive) hereinafter contained shall apply mutatis mutandis
to petitions for special leave to appeal.

8. Rules 3 to 7 (both inclusive) shall apply mutatis
mutandis to petitions for leave to appeal in fcrmd pauperis,
but in addition to the affidavit referred to in Rule 4 every
such petition shall be accompanied by an affidavit from the
petitioner stating that he is not worth 25/. in the world

APPENDIX B. 449

excepting his wearing apparel and his interest in the subject-
matter of the intended appeal, and that he is unable to pro-
vide sureties, and also by a certificate of counsel that the
petitioner has reasonable ground of appeal.

9. Where a petitioner obtains leave to appeal in formd Exemption of
panperis, he shall not be required to lodge security for the £au]^nfc
costs of the respondent or to pay any Council Office fees. from lodging

10. A petitioner whose petition for leave to appeal in security and
, * paying office
forma paupens is dismissed may, notwithstanding such dis- fees.

missal, be excused from paying the Council Office fees usually Exemption of
chargeable to a petitioner in respect of a petition for leave unsuccessful

i -P TT- -..- • • ^N -i -i • e ,i petitioner for

to appeal, if kHis Majesty m Council, on the advice of the !eave to
Judicial Committee, shall think fit so to order. appeal in

formd

pauperis from

Record. payment of

office fees.

11. As soon as an appeal has been admitted, whether by Recordtobe
an order of the Court appealed from or by an Order of His transmitted
Majesty in Council granting special leave to appeal, the Wlthoutd
appellant shall without delay take all necessary steps to have

the record transmitted to the Registrar of the Privy
Council.

12. The record shall be printed in accordance with Rules Printing of
I. to IV. of Schedule A. hereto. It may be so printed either record.
abroad or in England.

13. Where the record is printed abroad, the registrar Number of
shall, at the expense of the appellant, transmit to the copies to be
Registrar of the Privy Council forty copies of such record, Where record
one of which copies he shall certify to be correct by signing printed

his name on, or initialling, every eighth page thereof and
by affixing thereto the seal, if any, of the court appealed
from.

14. Where the record is to be printed in England, the One certified

registrar shall, at the expense of the appellant, transmit to C(W to bej
•n • . «,, TV • r* -i ' •/» -I i transmitted.

the Registrar of the Privy Council one certified copy of such wnere record

record, together with an index of all the papers and exhibits to be printed
in the case. No other certified copies of the record shall be
transmitted to the agents in England by or on behalf of the
parties to the appeal.

15. Where part of the record is printed abroad and part Record
is to be printed in England, Rules 13 and 14 shall, as Printed

p.c. 29

450

THE PRACTICE OF THE PRIVY COUNCIL.

partly

abroad, partly
in England.

Reasons for
judgments to
be trans-
mitted.

Exclusion
-of unneces-
sary docu-
ments from
record.

Documents
objected to
to be indi-
cated.

Registration
and number-
ing of re-
cords.

Inspection of
record by
parties.

Times within
which a copy

far as practicable, apply to such parts as are printed abroad
and such as are to be printed in England respectively.

16. The reasons given by the judge, or any of the judges,
for or against any judgment pronounced in the course of
the proceedings out of which the appeal arises, shall by
such judge or judges be communicated in writing to the
registrar and shall by him be transmitted to the Registrar of
the Privy Council at the same time when the record is
transmitted.

17. The registrar, as well as the parties and their agents,
shall endeavour to exclude from the record all documents
(more particularly such as are merely formal) that are not
relevant to the subject-matter of the appeal, and, generally,
to reduce the bulk of the record as far as practicable, taking
special care to avoid the duplication of documents and the
unnecessary repetition of headings and other merely formal
parts of documents ; but the documents omitted to be
printed or copied shall be enumerated in a list to be placed
after the index or at the end of the record.

18. Where in the course of the preparation of a record
one party objects to the inclusion of a document on the
ground that it is unnecessary or irrelevant, and the other
party nevertheless insists upon its being included, the record,
as finally printed (whether abroad or in England), shall,
with a view to the subsequent adjustment of the costs of
and incidental to such document, indicate, in the index of
papers, or otherwise, the fact that, and the party by whom,
the inclusion of the document was objected to.

19. As soon as the record is received in the Registry of
the Privy Council, it shall be registered in the said registry,
with the date of arrival, the names of the parties, the date
of the judgment appealed from, and the description whether
" printed " or " written." A record, or any part of a
record, not printed in accordance with Rules I. to IV. of
Schedule A. hereto, shall be treated as written. Appeals shall
be numbered consecutively in each year in the order in
which the records are received in the said registry.

20. The parties shall be entitled to inspect the record and
to extract all necessary particulars therefrom for the purpose
of entering an appearance.

21. Where the record arrives in England either wholly

APPENDIX B. 451

written, or partly written and partly printed, the appellant of a
shall, within a period of four months from the date of such ^bespoken.
arrival in the case of appeals from courts situate in any of
oimtries or places named in Schedule B. hereto, and
within a period of two months from the same date in the
case of appeals from any other courts, enter an appearance
and bespeak a type-written copy of the record, or of such
parts thereof as it may be necessary to hare copied, and
shall engage to pay the cost of preparing such copy at the
following rates per folio typed (exclusive of tabular matter)
— l^d. per folio of English matter, 2d. per folio of Indian
matter, and 3d. per folio of foreign matter.

'2'2. The appellant shall forthwith, after entering his Notice of
appearance, give notice thereof to the respondent, if the
latter has entered an appearance.

23. As soon as the appellant has obtained the type- Preparation
written copy of the record bespoken by him, he shall pro- recorcPfor
ceed, with due diligence, to arrange the documents in printer.
suitable order, to check the index, to insert the marginal

notes and check the same with the index, and, generally, to
do whatever may be required for the purpose of preparing
the copy for the printer, and shall, if the respondent has
entered an appearance, submit the copy as prepared for the
printer, to the respondent for his approval. In the event of
the parties being unable to agree as to any matter arising
under this rule, such matter shall be referred to the
Registrar of the Privy Council, whose decision thereon shall
be final.

24. As soon as the type-written copy of the record is Lodging copy
ready for the printer, the appellant shall lodge it, with a ^^ for
request to the Registrar of the Privy Council to cause it to

be printed by His Majesty's printer or by any other printer
on the same terms, and shall engage to pay at the price
specified in Rule V. of Schedule A. hereto the cost of
printing fifty copies thereof, or such other number as in the
opinion of the said registrar the circumstances of the case
require.

. Whenever it shall be found that the decision of a Special case.
matter on appeal is likely to turn exclusively on a question
of law, the parties, with the sanction of the Registrar of the
Privy Council, may submit such question of law to the

29—2

452

THE PRACTICE OF THE PRIVY COUNCIL.

Examination
of proof of
record and
striking off
copies.

Number of
copies of
record for
parties.

How costs
of printing
record are
to be borne.

Times within
which peti-
tion shall be
lodged.

Judicial Committee in the form of a Special Case, and
print such parts only of the record as may be necessary for
the discussion of the same. Provided that nothing herein
contained shall in any way prevent the Judicial Committee
from ordering the full discussion of the whole case, if they
shall so think fit, and that, in order to promote such
arrangements and simplification of the matter in 'dispute,
the said registrar may call the parties before him, and
having heard them, and examined the record, may report
to the Judicial Committee as to the nature of the
proceedings.

26. The Registrar of the Privy Council shall, as soon as
the proof prints of the record are ready, give notice to all
parties who have entered an appearance requesting them to
attend at the Registry of the Privy Council at a time to be
named in such notice in order to examine the said proof
prints and compare the same with the certified record, and
shall, for that purpose, furnish each of the said parties with
one proof print. After the examination has been completed,
the appellant shall, without delay, lodge his proof print,
duly corrected and (so far as necessary) approved by the
respondent, and the Registrar of the Privy Council shall
thereupon cause the copies of the record to be struck off
from such proof print.

27. Each party who has entered an appearance shall be
entitled to receive, for his own use, six copies of the record.

28. Subject to any special direction from the Judicial
Committee to the contrary, the costs of and incidental to
the printing of the record shall form part of the costs of
the appeal, but the costs of and incidental to the printing
of any document objected to by one party, in accordance
with Rule 18, shall, if such document is found on the
taxation of costs to be unnecessary or irrelevant, be disallowed
to, or borne by, the party insisting on including the same in
the record.

Petition of Appeal.

29. The appellant shall lodge his petition of appeal —
(a) Where the record arrives in England printed, within

a period of four months from the date of such
arrival in the case of appeals from courts situate in

APPENDIX B. 453

any of the countries or places named in Schedule B.
hereto, and within a period of two months from the
same date in the case of appeals from any other
courts ;

(b) Where the record arrives in England written, within
a period of one month from the date of the comple-
tion of the printing thereof:

Provided that nothing in this rule contained shall preclude
an appellant from lodging his petition of appeal prior to the
arrival of the record, if there are special reasons why it
should be desirable for him to do so.

30. The petition of appeal shall be lodged in the form Form of
prescribed by Rule 47 hereinafter contained. It shall recite Petltlon-
succinctly and, as far as possible, in chronological order, the
principal steps in the proceedings leading up to the appeal

from the commencement thereof down to the admission of
the appeal, but shall not contain argumentative matter or
travel into the merits of the case.

31. The appellant shall, after lodging his petition of Service of
appeal, serve a copy thereof without delay on the respondent, Petltlon-
as soon as the latter has entered an appearance, and shall
endorse such copy with the date of the lodgment.

Withdraivtd of Appeal.

32. Where an appellant, who has not lodged his petition Withdrawal
of appeal, desires to withdraw his appeal, he shall give notice ^f^6^

in writing to that effect to the Registrar of the Privy tion of appeal

Council, and the said registrar shall, with all convenient

speed after the receipt of such notice, by letter notify the

registrar of the court appealed from that the appeal has been

withdrawn, and the said appeal shall thereupon stand

dismissed as from the date of the said letter without further

order.

3o. Where an appellant, who has lodged his petition of Withdrawal

appeal, desires to withdraw his appeal, he shall present a °* ^aPPeal .

TT- . -i .rv after petition

petition to that effect to His Majesty in Council. On the Of appeal has

hearing of any such petition a respondent who has entered ^en lodged,
an appearance in the appeal shall, subject to any agreement
between him and the appellant to the contrary, be entitled
to apply to the Judicial Committee for his costs, but where

454

THE PRACTICE OF THE PRIVY COUNCIL.

the respondent has not entered an appearance, or, having
entered an appearance, consents in writing to the prayer of
the petition, the petition may, if the Judicial Committee
think fit, be disposed of in the same way mutatis mutandis
as a consent petition under the provisions of Rule 56
hereinafter contained.

Dismissal of
appeal where
appellant
takes no step
in prosecu-
tion thereof.

Dismissal of
appeal for
non-prosecu-
tion after
appellant's
appearance
and before
lodgment of
petition of
appeal.

Non-Prosecution of Appeal.

34. Where an appellant takes no step in prosecution of
his appeal within a period of four months from the date of
the arrival of the record in England in the case of an
appeal from court situate in any of the countries or places
named in Schedule B. hereto, or within a period of two
months from the same date in the case of an appeal from
any other court, the Registrar of the Privy Council shall,
with all convenient speed, by letter notify the registrar of
the court appealed from that the appeal has not been prose-
cuted, and the appeal shall thereupon stand dismissed for
non-prosecution as from the date of the said letter without
further order.

35. Where an appellant who has entered an appearance —

(a) fails to bespeak a copy of a written record, or of part

of a written record, in accordance with, and within
the periods prescribed by, Rule 21 ; or

(b) having bespoken such copy within the periods pre-

scribed by Rule 21, fails thereafter to proceed with
due diligence to take all such further steps as may
be necessary for the purpose of completing the
printing of the said record ; or

respectively prescribed by Rule 29 ;

the Registrar of the Privy Council shall call upon the
appellant to explain his default, and, if no explanation is
offered, or if the explanation offered is, in the opinion of the
said registrar, insufficient, the said registrar shall, with all
convenient speed, by letter notify the registrar of the court
appealed from that the appeal has not been effectually
prosecuted, and the appeal shall thereupon stand dismissed
for non-prosecution as from the date of the said letter with-
out further order, and a copy of the said letter shall be

APPENDIX B. 455

sent by the Registrar of the Privy Council to all the parties
who have entered an appearance in the appeal.

36. Where an appellant, who has lodged his petition of Dismissal of
appeal, fails thereafter to prosecute his appeal with due non^pl-o^ecu-
diligence, the Registrar of the Privy Council shall call upon tion after
him to explain his default, and, if no explanation is offered, loec[f™0^Qfof
or if the explanation offered is, in the opinion of the said appeal,
registrar, insufficient, the said registrar shall issue a summons

to the appellant calling upon him to show cause before the
Judicial Committee at a time to be named in the said
summons why the appeal should not be dismissed for non-
prosecution provided that no such summons shall be issued
by the said registrar before the expiration of one year from
the date of the arrival of the record in England. If the
respondent has entered an appearance in the appeal, the
Registrar of the Privy Council shall send him a copy of the
said summons, and the respondent shall be entitled to be
heard before the Judicial Committee in the matter of the
said summons at the time named and to ask for his costs and
such other relief as he may be advised. The Judicial
Committee may, after considering the matter of the said
summons, recommend to His Majesty the dismissal of the
appeal for non-prosecution, or give such other directions
therein as the justice of the case may require.

37. An appellant whose appeal has been dismissed for Restoring an
non -prosecution may present a petition to His Majesty in ^^ ^"

Council praying that his appeal may be restored. non-prosecu-

tion.

Appearance by Respondent.

38. The respondent may enter an appearance at any time Time within
between the arrival of the record and the hearing of the ^ondent
appeal, but if he unduly delays entering an appearance he may appear,
shall bear, or be disallowed, the costs occasioned by such

delay, unless the Judicial Committee otherwise direct.

39. The respondent shall forthwith after entering an Notice of
appearance give notice thereof to the appellant, if the latter

has entered an appearance. dent.

40. Where there are two or more respondents, and only Form of

one, or some, of them enter an appearance, the appearance appearance

where all the
form shall set out the names of the appearing respondents.

456

THE PRACTICE OF THE PRIVY COUNCIL.

respondents
do not ap-
pear.

Separate
appearances.

Non-appear-
ing respon-
dent not en-
titled to re-
ceive notices
or lodge case.

Procedure on
non-appear-
ance of re-
spondent,

41. Two or more respondents may, at their own risk as to
costs, enter separate appearances in the same appeal.

42. A respondent who has not entered an appearance shall
not be entitled to receive any notices relating to the appeal
from the Registrar of the Privy Council, nor be allowed to
lodge a case in the appeal.

43. Where a respondent fails to enter an appearance in
an appeal, the following rules shall, subject to any special
order of the Judicial Committee to the contrary, apply : —

(a) If the non-appearing respondent was a respondent at

the time when the appeal was admitted, whether by
the order of the court appealed from or by an Order
of His Majesty in Council giving the appellant
special leave to appeal, and it appears from the
terms of the said order, or Order in Council, or
otherwise from the record, or from a certificate of
the registrar of the court appealed from, that the
said non-appearing respondent has received notice,
or was otherwise aware, of the order of the court
appealed from admitting the appeal, or of the Order
of His Majesty in Council giving the appellant
special leave to appeal, and has also received notice,
or was otherwise aware, of the dispatch of the
record to England, the appeal may be set down ex
parte as against the said non-appearing respondent
at any time after the expiration of three months
from the date of the lodging of the petition of
appeal ;

(b) If the non-appearing respondent was made a respondent

by an Order of His Majesty in Council subsequently
to the admission of the appeal, and it appears from
the record, or from a supplementary record, or
from a certificate of the registrar of the court
appealed from, that the said non-appearing respon-
dent has received notice, or was otherwise aware, of
any intended application to bring him on the
record as a respondent, the appeal may be set
down ex parte as against the said non-appearing
respondent at any time after the expiration of three
months from the date oil which he shall have been
served with a copy of His Majesty's Order in

APPENDIX B. 457

Council bringing him on the record as a

respondent.

Provided that where it is shown to the satisfaction of the
Judicial Committee, by affidavit or otherwise, either that an
appellant has made every reasonable endeavour to serve a
non-appearing respondent with the notices mentioned in
clauses (a) and (b) respectively and has failed to effect such
service, or that it is not the intention of the non-appearing
respondent to enter an appearance to the appeal, the appeal
may, without further order in that behalf and at the risk of
the appellant, be proceeded with exparte as against the said
non-appearing respondent.

44. A respondent who desires to defend an appeal in forma Respondent
pauperis may present a petition to that effect to His Majesty a^eaHjf
in Council, which petition shall be accompanied by an forma
affidavit from the petitioner stating that he is not worth l)aui)eris-
251 in the world excepting his wearing apparel and his

interest in the subject-matter of the appeal.

Petitions generally.

45. All petitions for orders or directions as to matters of Mode of
practice or procedure arising after the lodging of the petition

of appeal and not involving any change in the parties to an
appeal shall be addressed to the Judicial Committee. All
other petitions shall be addressed to His Majesty in Council,
but a petition which is properly addressed to His Majesty in
Council may include, as incidental to the relief thereby
sought, a prayer for orders or directions as to matters of
practice or procedure.

46. Where an order made by the Judicial Committee Orders on
does not embody any special terms or include any special ^i^need
directions, it shall not be necessary to draw up such order, not be drawn
unless the committee otherwise direct, but a note thereof shall UP-

be made by the Registrar of the Privy Council.

47. All petitions shall consist of paragraphs numbered con- Form of
secutively and shall be written, type-written, or lithographed, pet

on brief paper with quarter margin and endorsed with the
name of the court appealed from, the short title and Privy
Council number of the appeal to which the petition relates
or the short title of the petition (as the case may be),

458

THE PRACTICE OF THE PRIVY COUNCIL.

Caveat.

Service of
petition.

Verifying
petition by
affidavit.

and the name and address of the London agent (if any) of the
petitioner, but need not be signed. Petitions for special leave
to appeal may be printed and, shall, in that case, be printed
in the form known as demy quarto or other convenient
form.

48. Where a petition is expected to be lodged, or has
been lodged, which does not relate to any pending appeal
of which the record has been registered in the Registry
of the Privy Council, any person claiming a right to
appear before the Judicial Committee on the hearing of
such petition may lodge a caveat in the matter thereof, and
shall thereupon be entitled to receive from the Registrar of
the Privy Council notice of the lodging of the petition, if at
the time of the lodging of the caveat such petition has not
yet been lodged, and, if and when the petition has been
lodged, to require the petitioner to serve him with a copy of
the petition, and to. furnish him, at his own expense, with
copies of any papers lodged by the petitioner in support ot
his petition. The caveator shall forthwith after lodging
his caveat give notice thereof to the petitioner, if the
petition has been lodged.

49. Where a petition is lodged in the matter of any pend-
ing appeal of which the record has been registered in the
Registry of the Privy Council, the petitioner shall serve any
party who has entered an appearance in the appeal with a
copy of such petition, and the party so served shall there-
upon be entitled to require the petitioner to furnish him, at
his own expense, with copies of any papers lodged by the
petitioner in support of his petition.

50. A petition not relating to any appeal of which the
record has been registered in the Registry of the Privy
Council, and any other petition containing allegations of fact
which cannot be verified by reference to the registered record
or any certificate or duly authenticated statement of the
court appealed from, shall be supported by affidavit. Where
the petitioner prosecutes his petition in person, the said
affidavit shall be sworn by the petitioner himself and shall
state that, to the best of the deponent's knowledge, infor-
mation, and belief, the allegations contained in the petition
are true. Where the petitioner is represented by an agent,
the said affidavit shall be sworn by such agent and shall,

APPENDIX B.

459

besides statin? that, to the best of the deponent's know-
ledge, information, and belief, the allegations contained in
the petition are true, show how the deponent obtained
his instructions and the information enabling him to
present the petition.

51. A petition for an order of revivor or substitution shall Petition for
be accompanied by a certificate or duly authenticated state- J^fvo? or
ment from the court appealed from showing who, in the substitution,
opinion of the said court, is the proper person to be substituted,
or entered, on the record in place of, or in addition to, a
party who lias died or undergone a change of status.

. The Registrar of the Privy Council may refuse to Petition
receive a petition on the ground that it contains scandalous scandalous
matter, but the petitioner may appeal, by way of motion, matter to be
from such refusal to the Judicial Committee. refused.

;. As soon as a petition is ready for hearing, the Setting down
petitioner shall forthwith notify the Registrar of the Privy Pet
Council to that effect, and the petition shall thereupon be
deemed to be set down.

54. On each day appointed by the Judicial Committee for Times within
the hearing of petitions the Registrar of the Privy Council do^peti-
shall, unless the Committee otherwise direct, put in the paper tions shall be
for hearing all such petitions as have been set down. Pro- heard>
vided that, in the absence of special circumstances of

urgency to be shown to the satisfaction of the said registrar,
no petition, if unopposed, shall be so put in the paper before
the expiration of three clear days from the lodging thereof,
or, if opposed, before the expiration of ten clear days from
the lodging thereof unless, in the latter case, the opponent
consents to the petition being put in the paper on an
earlier day not being less than three clear days from the
lodging thereof.

55. Subject to the provisions of the next following rule, Notice to
the Registrar of the Privy Council shall, as soon as the ^rtl^e^ffor
Judicial Committee have appointed a day for the hearing hearing peti-
of a petition, notify all parties concerned by summons of tion-

the day so appointed.

56. Where the prayer of a petition is consented to in Procedure

writing by the opposite partv, or where a petition is of a where Petl-
_ * . . i T i * * i /^i fcion is COD."

formal and non-contentious character, the Judicial Com- sentedtoor

mittee may, if they think fit, make their report to His is formal.

460 THE PRACTICE OF THE PRIVY COUNCIL.

Majesty on such petition, or make their order thereon, as the
case may be, without requiring the attendance of the parties
in the Council Chamber, and the Registrar of the Privy
Council shall not in any such case issue the summons pro-
vided for by the last-preceding rule, but shall with all
convenient speed after the committee have made their report
or order notify the parties that the report or order has
been made and of the date and nature of such report
or order.

Withdrawal 57. A petitioner who desires to withdraw his petition
of petition. shau gjve notice in writing to that effect to the Registrar of
the Privy Council. Where the petition is opposed, the
opponent shall, subject to any agreement between the parties
to the contrary, be entitled to apply to the Judicial Com-
mittee for his costs, but where the petition is unopposed, or
where, in the case of an opposed petition, the parties have
come to an agreement as to the costs of the petition, the
petition may, if the Judicial Committee think fit, be dis-
posed of in the same way mutatis mutandis as a consent
petition under the provisions of the last-preceding rule.
Procedure 58. Where a petitioner unduly delays bringing a petition

where hearing to a hearing, the Registrar of the Privy Council shall call
of petition , . , -, . ,, -, , -, .» , ,.

unduly de- upon him to explain the delay, and, it no explanation is

layed. offered, or if the explanation offered is, in the opinion of

the said registrar, insufficient, the said registrar may treat
the said petition as set down and may, after duly notifying
all parties interested by summons of his intention to do so,
put the petition in the paper for hearing on the next following
day appointed by the Judicial Committee for the hearing of
petitions for such directions as the committee may think
fit to give thereon.

Only one 59. At the hearing of a petition not more than one counsel

counsel heard shall be admitted to be heard on a side.

on a side in

petitions.

Case.

Lodging of 60. No party to an appeal shall be entitled to be heard

case. by the Judicial Committee unless he has previously lodged

his case in the appeal. Provided that where a respondent is

merely a stakeholder or trustee with no other interest in the

appeal, he may give the Registrar of the Privy Council notice

APPENDIX B. 461

in writing of his intention not to lodge any case, while
reserving his right to address the Judicial Committee on
the question of costs.

61. The case may be printed either abroad or in Eng- Printing of
land, and shall, in either event, be printed in accordance case-
with Rules I. to IV. of Schedule A. hereto, every tenth
line thereof being numbered in the margin, and shall be
1 by at least one of the counsel who attends at the
hearing of the appeal or by the party himself if he conducts
his appeal in person.

:. Each party shall lodge forty prints of his case. Number of

63. The case shall consist of paragraphs numbered prints to be
consecutively and shall state, as concisely as possible, the 8
circumstances out of which the appeal arises, the contentious

to be urged by the party lodging the same, and the reasons
of appeal. References by page and line to the relevant por-
tions of the record as printed shall, as far as practicable, be
printed in the margin, and care shall be taken to avoid, as
far as possible, the reprinting in the case of long extracts
from the record. The taxing officer, in taxing the costs of
the appeal, shall, either of his own motion, or at the instance
of the opposite party, inquire into any unnecessary prolixity
in the case, and shall disallow the costs occasioned thereby.

64. Two or more respondents may, at their own risk as to Separate
costs, lodge separate cases in the same appeal. or^nore' tW°

65. Each party shall, after lodging his case, forth with give respondents,
notice thereof to the other party. Notice of

66. Subject as hereinafter provided, the party who lodges 1(^f ment of
his case first may, at any time after the expiration of three ^j notice
clear days from the day on which he has given the other party

the notice prescribed by the last-preceding rule, serve such
other party, if the latter has not in the meantime lodged his
case, with a " case notice," requiring him to lodge his case
within one month from the date of the service of the said case
notice and informing him that, in default of his so doing, the
appeal will be set down for hearing ex parte as against him,
and if the other party fails to comply with the said case
notice, the party who has lodged his case may, at any time
after the expiration of the time limited by the said case notice
for the lodging of the case, lodge an affidavit of service
(which shall set out the terms of the said case notice), and the

462

THE PRACTICE OF THE PRIVY COUNCIL.

Setting down
appeal and
exchanging
cases.

appeal shall thereupon, if all other conditions of its being
set down are satisfied, be set down ex parte as against the party
in default. Provided that no case notice shall be served until
after the completion of the printing of the record and that it
shall be open to the taxing officer, in adjusting the costs of
the appeal, to inquire, generally, into the circumstances in
which the said case notice was served and, if satisfied that
there was no reasonable necessity for the said case notice, to
disallow the costs thereof to the party serving the same. Pro-
vided also that nothing in this rule contained shall preclude
the party in default from lodging his case, at his own risk
as regards costs and otherwise, at any time up to the date
of hearing.

67. Subject to the provisions of Rule 43 and of the last-
preceding rule, an appeal shall be set down ipso facto as
soon as the cases on both sides are lodged, and the parties
shall thereupon exchange cases by handing one another,
either at the offices of one of the agents or in the
Registry of the Privy Council, ten copies of their respective
cases.

Binding Records, etc.

Mode of
binding
records, etc.,
for use of
Judicial
Committee.

Time within
which bound
copies shall
be lodged.

68. As soon as an appeal is set down, the appellant shall
attend at the Registry of the Privy Council and obtain ten
copies of the record and cases to be bound for the use of the
Judicial Committee at the hearing. The copies shall be bound
in cloth or in half leather with paper sides, and six leaves of
blank paper shall be inserted before the appellant's case. The
front cover shall bear a printed label stating the title and Privy
Council number of the appeal, the contents of the volume, and
the names and addresses of the London agents. The several
documents, indicated by incuts, shall be arranged in the
following order : (1) appellant's case ; (2) respondent's case ;
(3) record ; (4) supplemental record (if any) ; and the short
title and Privy Council number of the appeal shall also be
shown on the back.

69. The appellant shall lodge the bound copies not less
than four clear days before the commencement of the sittings
during which the appeal is to be heard.

APPENDIX B. 463

Hearing.

70. As soon as the Judicial Committee have appointed a Notice to
day for the commencement of the sittings for the hearing of parties of
appeals, the Registrar of the Privy Council shall, as far as in mencement
him lies, make known the day so appointed to the agents of °f sittings ;
all parties concerned, and shall name a day on or before which appealsfor
appeals must be set down if they are to be entered in the list hearing.
of business for such sittings. All appeals set down on or

before the day named shall, subject to any directions from the
committee or to any agreement between the parties to the
contrary, be entered in such list of business and shall,
subject to any directions from the committee to the
contrary, be heard in the order in which they are set
down.

71. The Registrar of the Privy Council shah1, subject to Notice to
the provisions of Rule 42, notify the parties to each appeal by Jja^fixed
summons, at the earliest possible date, of the day appointed for hearing
by the Judicial Committee for the hearing of the appeal, and appeal,
the parties shall be in readiness to be heard on the day so
appointed.

72. At the hearing of an appeal not more than two counsel Only two
shall be admitted to be heard on a side. onTsi^fn1*

73. In admiralty appeals the Judicial Committee may, if appeals,
they think fit, require the attendance of two nautical Nautical
assessors. assessors.

Judgment.

74. Where the Judicial Committee, after hearing an appeal, Notice to
decide to reserve their judgment thereon, the Registrar of ^a^fixe'd for
the Privy Council shall in due course notify the parties delivery of
who attended the hearing of the appeal by summons of the Judgment.
day appointed by the committee for the delivery of the
judgment.

Costs.

Yll bills of costs under the orders of the Judicial Com- Taxation of
mittee on appeals, petitions, and other matters, shall be costs*
•d to the Registrar of the Privy Council, or such other
the Judicial Committee may appoint, for taxation,
ill such taxations shall be regulated by the schedule of
fees set forth in Schedule C. hereto.

464

THE PRACTICE OF THE PRIVY COUNCIL.

What costs
taxed in
England.

Order to tax.

Power of
taxing officer
where taxa-
tion delayed
through the
fault of the
party whose
costs are to be
taxed.

Appeal from
decision of
taxing officer.

Amount of
taxed costs to
be inserted in
His Majesty's
Order in
Council.

Taxation on
the pauper
scale.

Security to
be dealt with

76. The taxation of costs in England shall be limited to
costs incurred in England.

77. The Registrar of the Privy Council shall, with all
convenient speed after the Judicial Committee have given
their decision as to the costs of an appeal, petition, or other
matter, issue to the party to whom costs have been awarded
an order to tax and a notice specifying the day and hour
appointed by him for taxation. The party receiving such
order to tax and notice shall, not less than forty -eight hours
before the time appointed for taxation, lodge his bill of
costs (together with all necessary vouchers for disbursements),
and serve the opposite party with a copy of his bill of costs
and of the order to tax and notice.

78. The taxing officer may, if he think fit, disallow to any
party who fails to lodge his bill of costs (together with all
necessary vouchers for disbursements) within the time pre-
scribed by the last-preceding rule, or who in any way delays
or impedes a taxation, the charges to which such party would
otherwise be entitled for drawing his bill of costs and attending
the taxation.

79. Any party aggrieved by a taxation may appeal from
the decision of the taxing officer to the Judicial Committee.
The appeal shall be heard by way of motion, and the party
appealing shall give three clear days' notice of motion to the
opposite party, and shall also leave a copy of such notice in
the Registry of the Privy Council.

80. The amount allowed by the taxing officer on the
taxation shall, subject to any appeal from his taxation to
the Judicial Committee and subject to any direction
from the committee to the contrary, be inserted in His
Majesty's Order in Council determining the appeal or
petition.

81. Where the Judicial Committee directs costs to be
taxed on the pauper scale, the taxing officer shall not allow
any fees of counsel, and shall only award to the agents
out-of-pocket expenses and a reasonable allowance to
cover office expenses, such allowance to be taken at about
three-eighths of the usual professional charges in ordinary
appeals.

82. Where the appellant has lodged security for the
respondent's costs of an appeal in the Registry of the

APPENDIX B. 465

Privy Council, the Registrar of the Privy Council shall as His Ma-

deal with such security in accordance with the directions ^council ^

contained in His Majesty's Order in Council determining the determining

appeal. appeal directs.

Miscellaneous.

83. The Judicial Committee may, for sufficient cause powerof
shown, excuse the parties from compliance with any of the Judicial
requirements of these rules, and may give such directions in ^e^sx?
matters of practice and procedure as they shall consider just from com-
and expedient. Applications to be excused from compliance j?^ce Wlth
with the requirements of any of these rules shall be addressed

in the first instance to the Registrar of the Privy Council,
who shall take the instructions of the committee thereon and
communicate the same to the parties. If, in the opinion of
the said registrar, it is desirable that the application should
be dealt with by the committee in open court, he may, and if
he receives a written request in that behalf from any of the
parties, he shall, put the application in the paper for hearing
before the committee at such time as the committee may
appoint, and shall give all parties interested notice of the
time so appointed.

84. Any document lodged in connection with an appeal, Amendment
petition, or other matter pending before His Majesty in of documents-
Council or the Judicial Committee, may be amended by leave

of the Registrar of the Privy Council, but if the said registrar
is of opinion that an application for leave to amend should
be dealt with by the committee in open court, he may, and
if he receives a written request in that behalf from any of
the parties, he shall, put such application in the paper for
hearing before the committee at such time as the committee
may appoint, and shall give all parties interested notice of
the time so appointed.

85. Affidavits relating to any appeal, petition, or other Affidavits
matter pending before His Majesty in Council or the Judicial ^
Committee may be sworn before the Registrar of the Privy Registrar of
Council. the Pr.iv7

86. Where a party to an appeal, petition, or other °"
matter pending before His Majesty in Council changes his agent,
agent, such party, or the new agent, shall forthwith give

p.c. 30

466

Scope of
application
of rules.

Mode of
citation and
date of
operation.

THE PRACTICE OF THE PRIVY COUNCIL.

the Registrar of the Privy Council notice in writing of the
change.

87. Subject to the provisions of any statute or of any
statutory rule or order to the contrary these rules shall
apply to all matters falling within the appellate jurisdiction
of His Majesty in Council.

88. These rules may be cited as the Judicial Committee
Rules, 1908, and they shall come into operation on the 1st
day of January, 1909.

SCHEDULE A.
Rules as to Printing.

I. All records and other proceedings in appeals or other
matters pending before His Majesty in Council or the
Judicial Committee which are required by the above rules
to be printed shall henceforth be printed in the form known
as demy quarto (i.e., 54 ems in length and 42 in width).

II. The size of the paper used shall be such that the sheet,
when folded and trimmed, will be 11 inches in height and
8J inches in width.

III. The type to be used in the text shall be pica type,
but long primer shall be used in printing accounts, tabular
matter and notes.

IV. The number of lines in each page of pica type shall
be 47 or thereabouts, and every tenth line shall be numbered
in the margin.

V. The price in England for the printing by His
Majesty's printer of 50 copies in the form prescribed by
these rules shall be 38s. per sheet (eight pages) of pica with
marginal notes, not including corrections, tabular matter,
and other extras.

SCHEDULE B.

Countries and Places referred to in Rules, 21, 29,
and 34.

Australia (and the constituent States thereof).
Basutoland.

APPENDIX B. 467

British East Africa.

British Honduras.

British North Borneo.

Brunei.

Ceylon.

China.

Eastern African Protectorates,

Falkland Islands.

Federated Malay States.

Fiji.

Hong Kong.

India.

Mauritius.

New Zealand.

Persia.

Seychelles.

Somaliland Protectorate.

Straits Settlements.

Zanzibar.

30—2

APPENDIX C.

AGENT'S DECLARATION.

THE rules as to the qualification of proctors, solicitors,
and agents practising in appeals before the Judicial
Committee are now prescribed by an Order in Council of
1896, which replaces an earlier Order of 1870. The rules
are as follows :

I. Every proctor, solicitor, or agent admitted to practise
before His Majesty's Most Honourable Privy Council, or
any of the committees thereof, shall subscribe a declaration
to be enrolled in the Privy Council Office, engaging to
observe and obey the rules, regulations, orders, and practice
of the Privy Council ; and also to pay and discharge,
from time to time, when the same shall be demanded, all
fees or charges due and payable upon any matter pending
before His Majesty in Council ; and no person shall be
admitted to practise, or allowed to continue to practise,
before the Privy Council, without having subscribed such
declaration in the following terms : —

Form of Declaration.

We, the undersigned, do hereby declare, that we desire
and intend to practise as solicitors or agents in appeals
and other matters pending before His Majesty in
Council ; and we severally and respectively do hereby
engage to observe, submit to perform, and abide by all
and every the orders, rules, regulations, and practice
of His Majesty's Most Honourable^ Privy Council and
the committees thereof now in force, or hereafter from
time to time, to be made ; and also to pay and
discharge, from time to time, when the same shall
be demanded, all fees, charges, and sums of money due
and payable in respect of any appeal, petition, or other
matter in and upon which we shall severally and
respectively appear as such solicitors or agents.

APPENDIX C.

II. Every proctor or solicitor practising in London (a)
shall be allowed to subscribe the foregoing declaration, and
to practise in the Privy Council, upon the production of his
certificate for the current year ; and no fees shall be
payable by him on the enrolment of his signature to the
foregoing declaration.

III. Persons not being certificated London solicitors,
but having been duly admitted to practise as solicitors by
the High Courts of Judicature in England or Ireland, or by
the Court of Session in Scotland, or by the High Courts in
any of His Majesty's Dominions respectively, may apply,
by petition, to the Lords of the Committee of the Privy
Council, for leave to be admitted to practise before such
Committee ; and such persons may, if the Lords of the
Committee please, be admitted to practise by an Order of
their Lordships, for such periods and under such conditions
as their Lordships are pleased to direct.

IV. Any proctor, solicitor, agent, or other person prac-
tising before the Privy Council, who shall wilfully act in
violation of the rules and practice of the Privy Council, or
of any rules prescribed by the authority of His Majesty, or
of the Lords of the Council, or who shall misconduct
himself in prosecuting proceedings before the Privy
Council, or any committee thereof, or who shall refuse
or omit to pay the Council Office fees or charges pay-
able from him when demanded, shall be liable to an
absolute or temporary prohibition to practise before the
Privy Council, by the authority of the Lords of the Judicial
Committee of the Privy Council, upon cause shown at their
Lordships' Bar.

(a) The Judicial Committee have no power to extend at their
discretion the class of those eligible to practice in the Privy Council.
Only those solicitors who fall within the terms of Rules II. and in.
can be admitted. Cf. Re Tindale's Petition, 14 A. C. 328.

469

APPENDIX D.

FORMS OF PETITIONS.
PETITION FOR SPECIAL LEAVE TO APPEAL.

IN the Privy Council.

On appeal from the Supreme Court of
Between A. B., Appellant, and C.D. and the E. F. Company,
Respondents.

To the King's Most Excellent Majesty in Council.

The Humble Petition of A. B.
Sheweth,

1. That the petitioner, who is a married woman, instituted
an action by specially endorsed writ on February 26, 1905,
in the said court against the respondent C. D. as a partner
in the E. F. company (thereinafter called " the firm ")
claiming $5265.68 being principal sums lent and interest
due under two promissory notes made by the firm on
January 4 and 10, 1904, respectively, and interest on these
loans at the rates stated in the promissory notes from the
date of the writ till judgment.

2. That by an order of the said court, dated April 2, 1905,
the firm were added as defendants.

3. That by an order of the said court, dated June 16, 1905,
an issue was directed to be tried without pleadings whether
the respondent C. D. was on the said January 4 and 10,
1904, or on either of such dates, a partner in the said firm
or liable as such partner.

4. That the issue was tried before the chief justice and a
jury, and evidence was adduced on both sides.

5. That the jury found a verdict that the respondent C. D.
was a partner in the said firm, and the chief justice thereupon
entered judgment in the action for the petitioner with
costs.

fi. That i

APPENDIX D.

6. That the respondent C. D. moved the full court for a
new trial of the issue on the ground that the verdict was
against the weight of evidence.

7. That the full court consisted of the chief justice and
the acting puisne judge.

8. That on September 5, 1906, the chief justice delivered
his judgment, concurred in by the acting puisne judge,
ordering a new trial of the issue not on the ground relied
on by the respondent C. D. that the verdict was against
the weight of evidence, but on the ground that the chief
justice considered that there were suspicious circumstances
connected with the petitioner's case.

9. That the following were the circumstances relied on in
the judgment of September 5, 1906, as being suspicious, that
the petitioner purposely delayed the trial till after the
destruction of certain of the firm's books which each party
said contained evidence in its favour, that the said books
having been placed in the custody of the court in connection
with another action and while still in such custody became
so injured by mice that on April 13, 1906, they were
destroyed by the sanitary authorities.

10. That the said destruction was, as the judgment cor-
rectly stated, " owing to circumstances beyond control" and
as the judgment correctly stated, the petitioner's solicitors
first heard of the said destruction a few days before the trial
when they applied to the registrar of the court for inspec-
tion of the said books for the purposes of the trial, and the
petitioner did not know, and no evidence was given that she
knew, of the said destruction till she was then informed
thereof by her solicitors.

11. That the delay was also owing to circumstances be-
yond the petitioner's control, and evidence by her solicitors
in explanation of the delay was tendered to the full court
but not admitted.

12. That the judgment proceeded to refer to other alleged
suspicions regarding the credibility of the petitioner's
witnesses who spoke to the contents of the said books, which
suspicions the judgment stated were to be tacked on to the
suspicions before mentioned.

13. That the new trial was directed because of these
alleged suspicions and in order that the jury might pro-

472 THE PRACTICE OF THE PRIVY COUNCIL.

nounce an opinion whether the facts substantiated the chief
justice's suspicions.

14. That the petitioner moved the full court again, con-
sisting of the chief justice and the acting puisne judge
for leave to appeal to Your Majesty in Council against the
judgment of September 5, 1906.

15. That the petitioner contended that such leave should
be granted on the grounds that the said judgment was a
final judgment within the meaning of the rules which regu-
late appeals from the said court, and that the question
involved in the appeal was one which by reason of its great
general importance ought to be submitted to Your Majesty
in Council.

16. That on November 28, 1906, the full court delivered
judgment, refusing leave to appeal, but expressed much doubt
as to the said refusal and observed that the said refusal had
the advantage that it could come before Your Majesty in
Council on an exparte application, the costs of bringing the
respondents before the board being in the first instance
avoided.

17. That the petitioner felt herself aggrieved by the
judgment of September 5, 1906, ordering a new trial, which
she respectfully submitted was wrong on the grounds set
forth in the said petition.

And praying Your Majesty in Council to grant her special
leave to appeal from the judgment of September 5,
1906, or for such other order as to Your Majesty
in Council may seem fit.

PETITION OF APPEAL.

In the Privy Council. No. of 19

On appeal from the Supreme Court of the Island of
Ceylon.

Between A. B., Appellant, and C. D., Respondent.
To the King's Most Excellent Majesty in Council.

The Humble Petition of the Appellant.
Sheweth,

1. That on August 31, 1909, the respondent brought an
action in the District Court of Colombo against the appellant

APPENDIX D. 473

as executor of the estate of the late E. F. claiming possession
of premises situate at Colpetty within the municipality of
Colombo by virtue of a deed dated December 5, 1893,
excuted in the respondent's favour by his stepson G. H.

2. That the appellant defended the said action, and on
December 20, 1909, the said District Court made a decree
in favour of the appellant and dismissed the said action.

3. That the respondent appealed to the said Supreme
Court and that court allowed the appeal and made a decree
on July 12, 1910, in favour of the respondent.

4. That the appellant being dissatisfied with the said
decree of July 12, 1910, obtained leave to appeal therefrom
to Your Majesty in Council.

And humbly praying Your Majesty in Council to take
this appeal into consideration and that the said decree
of the said Supreme Court dated July 12, 1910, may
be reversed, altered or varied, or for further or other
relief in the premises.

PETITION OF REVIVOR.

In the Privy Council. No. of 19 .

On appeal from the High Court of Judicature at Fort

William in Bengal.
Between A. B., Appellant, and C. D., (since deceased)

Respondent.

To the King's Most Excellent Majesty in Council.
The Humble Petition of the Appellant.
Sheweth,

1. That the above appeal is pending before Your Majesty
in Council.

2. That the respondent has died as appears from a
Supplemental Record which has arrived at the Privy Council
Office from which it also appears that by an Order of the
said High Court dated June 19, 1911, it was declared that
E. F., G. H., and I. J.,were the proper persons to be substi-
tuted on the Record in the place of the deceased respondent.

And humbly praying that E. F., G. H., and I. J., may be
substituted in the above appeal for the deceased
respondent, and that the appeal may be revived
accordingly.

474 THE PRACTICE OF THE PRIVY COUNCIL.

PETITION FOB CONSOLIDATION.

In the Privy Council. Nos. of 19 .

On appeal from the Court of the Judicial Commissioner of

Oudh, Lucknow.

Between A. B., Appellant, and C. D. Respondent.
And between the said C. D. Appellant, and the said A. B.
Respondent

To the Lords of the Judicial Committee of the Privy
Council.

The Humble Petition of A. B.
Sheweth,

1. That the above appeals are pending before His Majesty
in Council.

2. That the decree from which they are brought was
made in a suit brought against the petitioner for recovery of
principal and interest due on a mortgage.

3. That the appeal of the said C. D. relates to the rate of
interest allowed <by the said decree.

4. That it will be for the convenience of both parties and
will save considerable expense if an order is made for the
consolidation of the said two appeals.

And humbly praying that they may be consolidated and
heard together on one printed case on each side.

PETITION TO WITHDRAW APPEAL.

In the Privy Council. No. of 19 .

On Appeal from the Supreme Court of Victoria.
Between A. B., Appellant, and C. D., Respondent

To the King's Most Excellent Majesty in Council.

The Humble Petition of the Appellant.
Sheweth,

1. That the above appeal is pending before Your Majesty
in Council from a judgment of the said Supreme Court
dated March 12, 1910.

2. That the record has been transmitted to the Eegistrar
of the Privy Council.

3. That terms of settlement of the matters in dispute
have been agreed between the parties and it is desired that

APPENDIX D. 475

the said appeal should be withdrawn without any order as to
costs (a).

And humbly praying Your Majesty in Council to grant
leave to withdraw the said Appeal without costs (a).

CASE NOTICE.
In the Privy Council.
On appeal from the Supreme Court of Queensland.

Between A. B. Appellant, and C. D., Respondent.

TAKE NOTICE that you are required to lodge the case on
behalf of the within one month from the date of the

service of this notice. And further take notice that in
default of your so doing the appeal will be set down for
hearing ex parte as against the

Solicitors for the
To Messrs. E. F.

Solicitors for the

(a) Or as the case may be.

APPENDIX E.

TIME TABLE OF STEPS TO BE TAKEN IN AN
APPEAL.

I. BY APPELLANT.
A. Steps to be taken in the Colonial Court.

APPLICATION for leave to appeal to be made by motion or
petition within the period fixed by the Order in Council for
the particular Colony.

Security for the due prosecution of the appeal and for
costs to be given within time fixed by the court.

Printing the record (this step is optional, as the record
may be printed in England).

Dispatch of the record to the Registry of the Privy
Council.

B. Steps to be taken in England.

(1) When leave is not obtained in Colonial Court, a
petition for special leave to appeal must be presented to the
Judicial Committee.

(2) When the appeal is admitted, if the record is not
printed, copy of record must be bespoken and appearance
entered —

(a) within four months from the date of its arrival in the

case of appeals from places East of Cape Colony ;

(b) within two months from all other courts.

Give notice of appearance to respondent if latter has
appeared.

(3) Petition of appeal must be lodged —

(i) when record arrives in England printed —

(a) within four months from date of arrival in the case
of appeals from places East of Cape Colony ;

(b) within two months from all other courts ;
(ii) When record arrives in England written.
Within one month from date of completing printing.

APPENDIX E. 477

(4) Serve petition of appeal without delay on respondent
as soon as he has entered appearance.

(5) If respondent does not appear after three months from
lodging appeal case may be set down ex parte.

(G) Printing case and lodgment of case.

(7) Notice of lodgment of case to other party.

(8) If other party does not lodge case after three clear
days from service of notice, serve case notice.

(9) In default of lodgment of case by other party after
case notice, after expiration of month lodge affidavit of
service and set down appeal ex parU.

(10) The case should be set down within one year from
the date of the arrival of the record in England. When
both cases lodged set down appeal.

(11) Obtain ten copies of record and cases to be bound
for use of Judicial Committee.

(12) Bound copies of cases to be lodged not less than
four clear days before commencement of sittings during
which appeal to be heard.

(13) Hearing of appeal.

II. STEPS TO BE TAKEN BY RESPONDENT.
Steps to bo taken in England.

(1) Enter appearance on arrival of record and bespeak
copy of record.

(2) Settle the record with appellant.

(3) Give notice of appearance to appellant at once, if
latter has entered appearance.

(4) Print and lodge case after petition of appeal served.

(5) Give notice to appellant of lodging case.

(6) Serve case notice on appellant if he does not lodge
case as in (9) supra.

APPENDIX F.

SPECIMEN OF INDEX OF RECORD.

IN the Privy Council. No. 40 of 1894.

On appeal from the Supreme Court of Jamaica.

Between Thomas Albert Samuel Manley (Plaintiff)
Appellant, and John Thomson Palache (Defenbant),
Respondent.

Record of Proceedings.
INDEX OF REFERENCE.

No.

Description of Document.

Date.

Page.

Writ of Summons ....

10th June, 1892 .

Postea

3rd June, 1893 .

Appearance for Defendant

1st July, 1892

Amended Statement of Claim .

5th August, 1892 .

Motion for Judgment by Default,

6th March, 1893 .

with Order thereon.

Order on Motion for Judgment

10th March, 1893 .

Plaintiff's Further and Better Par-

17th March, 1893 .

ticulars, delivered under Order

of 10th March, 1893.

Order for issue of Commission to

10th April, 1893 .

examine Hon. H. H. Hocking.

Amended Statement of Defence and

17th April, 1893 .

Counter-claim filed.

Defendant's Further Particulars,

17th April, 1893 .

under Order of llth April, 1893.

25th April, 1893 .

Notice of Trial to Defendant .

25th April, 1893 .

Rejoinder

12th May, 1893 .

Plaintiff's Admission of Facts

13th May, 1893 .

Judgment ....

3rd June, 1893 .

APPENDIX F.

479

Description of Document.

Date.

Page.

Exhibit.

A2
A3

EXHIBITS.

Nias r. Manley, Writ of Sum-
mons.
„ „ Statement of

Claim.
„ „ Statement of

Defence.
Reply .
Letter, G. G. Gunter to

Lindo and De Cordova.
Letter (in reply), Lindo and
De Cordova to G. G.
Gunter.

Notice of Plaintiffs intention
to use Evidence at Trial.
Conveyance of " Bread-
lands," Nias to Manley.
[And so on, setting out the
various exhibits printed in the
Record, numbered consecutively,
and identified by the mark
placed upon them at the trial. ,]
Notes on Evidence of Trial

Thomas Hendrick

[ Then followed names of other
witnesses with reference to page
of the Record.^
Notice and Grounds of Appeal and

Motion for a New Trial.
Judgment of Mr. Justice Jones on

Appeal.
Judgment of Mr. Justice Lumb on

Appeal.
Judgment of the Chief Justice on

Appeal.

Order on Motion for New Trial
Petition for leave to Appeal to

H.M. in Council.
Order on Petition for leave to

Appeal.
Bond for security for Costs

Certificate of Register verifying
Transcript Record.

14th June, 1890 .

23rd September,

1890.
3rd January, 1891

3rd March, 1891 .
23rd May, 1893 .

23rd May, 1893 .

22nd May, 1893 .
23rd August, 1887

12th June, 1893 .

9th October, 1893
9th October, 1893

9th October, 1893
17th October, 1893

23rd October, 1893

10th November,

1893.
9th May, 1894

34
36
38

40
41

42
43

130-
163
130

164
168
172
176

184
184

185
186
188

480

THE PRACTICE OF THE PRIVY COUNCIL.

List of Documents in Transcript Record omitted from Printed
Record by consent of Solicitors.

No.

Page

Documents omitted.

Date.

T. R.

T.R.

Affidavit of G. G. Gunter in support

of Motion.

[Then followed in like manner
the other omitted documents.']

INDEX.

ABATEMENT,

abatement and revivor, 305 — 310

Court must have proper parties before it, 305
death of sole appellant, 305

one of two joint appellants, 306

when to ask for fresh security, 306

rule in cases under Church Discipline Act, 306
death of sole respondent, 307

order of revivor, 307
abatement on marriage, 307, 308
insolvency and bankruptcy, 308
lunatic, action by committee of, 308

order of revivor by co-heiresses and administratrix, 308
amendment of record in Colony, 308, 309
substitution of parties by petition of revivor, 309, 310
petition to revive, form of, 310
costs in revived appeal, 310

recognizance for costs, 310
judgment in abated appeal, 310

ADEN AND PERIM. See BRITISH INDIA.

ADMIRALTY APPEALS,

appellate jurisdiction of Judicial Committee, 362

when appeal to Court of Appeal and thence to House of

Lords, 12

Prize Courts, appeals still lie from, to Privy Council, 12, 362
Admiralty matters where appeal to Privy Council lies, 362,

363
appeal from Court of Admiralty of Cinque Ports, 362

Colonial Courts of "Admiralty, 363
Colonial Courts of Admiralty, 363

jurisdiction in prize and slave trade matters, 363

enactments as to appeals to Privy Council in Admiralty

matters, 363
where granted, 364, 366
Eules as to, 364, 365
Rules of 1865 apply, how far, 366
Rules of appeal to Sovereign under Colonial Courts of

Admiralty Act, 1890.. .366, 368-370
notice of appeal, 368
form of, 368, note

to deny right of appeal respondent should appear
under protest, 369, note

p.c. 31

482 INDEX.

ADMIRALTY APPEALS— continued.

Colonial Courts of Admiralty — continued.
notice of appeal — continued.

bail by appellant to answer costs of appeal, 369
inhibition, citation or monition, 369

process, transmission of, 369
Canada, 369

Exchequer Court of Canada a Colonial Court of

Admiralty, 49, 367
Vice-Admiralty Rules of 1883 repealed, 367

no rules in place thereof, 367
South Africa Admiralty Appeals, 88, 367
Straits Settlements, 136
Gibraltar, 369, 370
British India, 370

Courts of Admiralty out of Dominions, 371
Cyprus, 371

notice of appeal within a month, 371
security, 371

AFFIDAVITS,

when required, 258, 259
sworn before registrar, 259, 440

AFRICA PROTECTORATES,

Africa Order in Council, 1889... 118
now supplanted, 118

AGENTS,

admission of, to practise before Privy Council, 264, 468

declaration by, to practise before Privy Council, 264, 468

change of, 265
agency not recognised for purposes of costs, 329

AJMERE,

High Court of. See BRITISH INDIA.

ALBERTA,

appeal from, 51

AMOTION FROM OFFICE. See SPECIAL REFERENCE.

AMOTION OF JUDGES, 252—256
And see SPECIAL REFERENCE.

ANGUILLA. See LEEWARD ISLANDS.
ANTIGUA. See LEEWARD ISLANDS.

INDKX. 483

APPEAL BY RIGHT OF GRANT.

prerogative right of Crown to review decisions of all Colonial

Courts, 36
how it may be parted with, 36

in such cases even special leave to appeal to Sovereign

will be refused by Privy Council, 37
Crown's power to legislate, 37
power of Colonial Courts to grant leave, 192
no appeal as of right except by express enactment, 193, 194
appeals by special reference, 193

where grant exists, subject can appeal as of right, 194
conditions attached to right, 194

discretion of Court below, 194
interlocutory judgments, 195
final judgment, wliat included in, 195, 196
steps' where rules exist, 196, 262 ff.
assertion of right, time for, 197, 262, 263

objection of non-compliance with conditions, 197
appealable value, 197 — 201

measure of appealable value, 197

value where third party appeals, 198
evidence of value, 201
value where unascertained damages, 199
where payment ordered, 199
where interest reckoned, 199
consolidation of suits, 199
costs no part of appealable value, 200
no appeal as to costs where in discretion of

Court, 200

appeal where mistake in law. 200, 201
where leave wrongfully refused, 201, 203
appeal where no fixed "pecuniary value, 202
security for appeal, 202

fixed by Court below, 202, 203
non-compliance with condition as to, 203
discretion of Court below as to, 203
sufficiency of security, 204

how security furnished, 204
conditions of appeal when reviewed by Privy Council,

205
in forma pauperis, 205

course respondent should pursue where irregu-
larity, 205

appeal at discretion of Colonial Court, when granted, 206
order granting leave filed, 267

APPEAL BY SPECIAL LEAVE,

petition for special leave where no appeal by right of grant or

when leave refused in Colonial Court, 34, 207
Judicial Committee Rules affecting, 207
form of petition, 207, 208, 258

how addressed, 257, 258
copies to be lodged, 207
time for lodging, 208
nature of petition, 208

31—2

484 INDEX.

APPEAL BY SPECIAL LEAVE— continued.
petition for special leave, etc. — continued.
setting down petition, 259, 260
withdrawal of, 260
one counsel on hearing, 261
special grounds disclosed, 208
affidavit in support, 209, 258
untrue statements, 209
I. Exercise of prerogative, 209—223
rule for general guidance, 210
application ex parte, 210

notice when respondent in England, 210
evidence on application for leave, 211
order giving leave to appeal, 211
counter-petition to dismiss, 211
objection to competency of appeal, 211
special leave, when inapplicable, 212
Courts of Special Jurisdiction, 212
where decision below not susceptible of appeal, 212
application to Court below before petitioning for special

leave, 213

points not raised in appeal below, 213, 266
appeal from refusal of leave coupled with petition, for

special leave, 213
leave refused because below appealable value, 213.

214
where discretion wrongly exercised by Court below,

214
II. Two classes of cases where special leave given, 214

(A) where leave sought as act of grace,
in absence of grant, 215

where appellate Court no longer exists, 215
questions beyond pecuniary value, status, 215

rights of general local importance, 216

matter of public interest, 216, 219

abstract right, 217

academic questions, 216
' Court below acting without jurisdiction, 217

decision determining several suits, 218

questions of revenue, 218, 219

constitutional questions, 219

where leave granted below a nullity, 219

omission to ask leave below, 220

jurisdiction of Court below doubtful, 220

injury to character, 220

delay through mistaking remedy, 221

delay while obtaining advice, 221

laches, 221, 222

delay in prosecuting cross-appeal, 222

non-completion of conditions of appeal, 222

(B) where appellant seeks direct appeal to Sovereign by

virtue of 7 & 8 Viet. c. 69... 223, 224
point of law deserving discussion, 223
where question of principle involved, 224
appeal from court-martial, 225

INDEX. 485

APPEAL BY SPECIAL LEAVE— continued.

III. Petitions and appeals in forma pauperis, 225 — 228
petition for, 225

certificate of counsel, 226

application to Court below, 226

consideration of merits, 227

next friend suing as pauper, 227

relief from fees, 226, 227

special leave to defend in forma pan per is, 228

costs, 228

IV. Criminal appeals, 228—234
inherent prerogative, 228, 229
difficulties in way of criminal appeal, 229
questions of great and general importance, 229
due administration, of justice interrupted, 229, 230
when prerogative exercised, 230, 231

Kiel's case, 230

Dillet's case, grounds for appeal as stated in, 231

disputed evidence, 231

delay, 232

special Court, 232
misdemeanour, appeals in, 232
felony, 232, 233
technical objections, 233

Court not validly constituted, 233

want of jurisdiction for arrest, 234
conditions of appeal in criminal cases, 234
contempt of Court, 234
prerogative of mercy, 234

V. Conditions attached to special leave, 234—238

security, 234—236

stay of execution, 235

stay of execution on terms, 236

where special appeal under 7 & 8 Viet. c. 69... 237

when time to appeal expired, 237

where leave granted insufficient, 237

appellant paying costs in any event, 237

appeals by public officers, 237, 238

enforcing condition, 238

compromise pending appeal, 238

vacating security, 238

order granting leave to be filed, 267

APPEALS, ADMIRALTY. See ADMIRALTY APPEALS.
APPEALS, ECCLESIASTICAL. See ECCLESIASTICAL APPEALS.
APPEALABLE VALUE, 23—24, 197—202.

APPEARANCE,

both parties must enter, 272

limit of time within which appellant must enter, 273

respondent must enter, 273
notice of appearance, 273

486 INDEX.

APPEARANCE— contin ued.
form of, 273

when respondent does not appear, 282 — 284
respondent appearing1 after judgment, 352

APPELLATE JURISDICTION ACT, 1876,
provisions of, 10

Lords of Appeal in Ordinary, appointment of, 10

APPELLATE JURISDICTION ACT, 1908... 17

AKCHBISHOP,

attendance of, at hearing of ecclesiastical causes by Judicial Com-
mittee, rules for, 407
appeal to. See ECCLESIASTICAL APPEALS.

ASHANTI. See GOLD COAST.
ASSAM. See BEITISH INDIA.

ASSESSORS,

appointment of, on hearing of ecclesiastical causes by Judicial
Committee, 11, 12

AUSTRALASIA,

Commonwealth of, 65 ii.
Act of 1900... 65 ft

appeals from Supreme Court of the States, 65, 72, 74 ff .
High Court of Australia the Federal Supreme Court, 65
jurisdiction of Federal High Court, 66—68

no prerogative right of appeal to Sovereign, 67, 68
when appeal to Privy Council will lie, 67
two final co-ordinate Courts, 68
Commonwealth Judiciary Act, 68
conflict of jurisdiction with Privy Council, 68 — 72
Judiciary Amendment Act, 71
appeal in other than constitutional cases, 73

BAHAMAS,

settlement of Colony, 110

Supreme Court of, 110

appeals to Privy Council from, 111

provisions of Bahamas Supreme Court Act, 1896...111
no appeal in criminal cases, 111.

BANKRUPTCY OF APPELLANT. See ABATEMENT.

BARBADOS,

constitution of, 111
Courts of, 112

appeal from Chief Justice to Court of Appeal of Windward

Islands, 112

appeal to Privy Council, 112
And see WINDWARD ISLANDS.

INDEX.

BAROTZILAND. See NORTH-WESTERN RHODESIA.

BASUTOLAND,

territory under His Majesty's direct authority, 88, 89
appeals from Eesident Commissioner, 89

BECHUANALAND PROTECTORATE,
cession of jurisdiction, 89
appeal to Privy Council, 90

BELUCHISTAN, BRITISH. See BRITISH INDIA.

BENEFICES ACT, 1898,

New Ecclesiastical Court created by, 398. And see ECCLESIAS-
TICAL COURTS, APPEALS FROM.

BENGAL. See BRITISH INDIA.

BERMUDA,

a settled colony, 112

Supreme Court of, 112

appeal to Privy Council, 112, 113

colonial appeal rules do not apply, 113

BINDING RECORDS, 291

BISHOP,

attendance of, at hearing of ecclesiastical causes by Judicial

Committee, rules for, 407, 408
appeal from. See ECCLESIASTICAL APPEALS.

BOMBAY. See BRITISH INDIA.

Rules as to appeals under C. C. P., s. 612. ..165— 167

BORNEO, BRITISH NORTH. See SARAWAK AND LABUAN.

BRITISH BECHUANALAND,
part of Cape Colony, 89

foreign jurisdiction over adjacent territory, 89
courts in, 90
appeal to His Majesty, 90

BRITISH COLUMBIA,

Supreme Court of, constitution and jurisdiction of 51
appeals from Supreme Court of, to Privy Council, 52

BRITISH GUIANA,

history, 104

Supreme Court, constitution and jurisdiction of, 104

appeal from Supreme Court to Privy Council, 105

BRITISH HONDURAS,

constitution of, 105

Supreme Court, jurisdiction of, 105

appeal from Supreme Court of, to Supreme Court of Jamaica

abolished, 105
Colonial Court of Admiralty, 105

488 INDEX.

BRITISH INDIA, 137—183

transfer from; East India Company to Crown, 137

I. High Courts of Bengal, Madras, and Bombay and N. W.
Provinces created by Imperial Charter Act, 1861, and Letters
Patent, 137, 138

other High Courts created under legislative powers of Governor-
General in Council, 138

Oudh, Court of Judicial Commissioner of, 138
Punjab, chief Court of, a final appellate Court, 138
Upper Burma, Court of Judicial Commissioner of, 138
Lower Burma, chief Court for, 139

Central Provinces, Court of Judicial Commissioner of, 139
Coorg High Court, 139
A j mere High Court, 139
Assam High Court, 139
British Beluchistan, High Court, 139
Aden and <Perim Court of Resident, 139, 140
High Courts' power to establish new, 140
scheduled districts, Orders in Council and Code of Civil Pro-
cedure govern appeals from certain Courts in, 140
what districts included in Scheduled Districts Act, 140
appeals from scheduled districts not under Code of Civil
Procedure, 140t 141

II. Native States, appeals from Courts in to Judicial Committee,

141, 142

when jurisdiction political, 142
foreign jurisdiction in, 143

appeal from Court of, 143

application of Code of Civil Procedure to Courts of My-
sore, Hyderabad, Kashmir, Rajputana, 143
Governor - General's power to legislate for Native States,
143

III. Rules in appeals from British India to Privy Council, 144 ff.

(1) rules of Appeal in Order in Council, 1838... 146
petition within six months, 146

appealable value, 146
certificate of value, 146
prerogative preserved, 147

(2) in Letters Patent creating High Court, 147 ff.
power to appeal, 147

appeal from interlocutory judgment, 148

in criminal cases, 148
tranmission of record, 148

(3) rules of Code of Civil Procedure as to, 149—163
" decree "defined, 149, note

meaning of " decree or final order," 150, note
decrees from which appeals lie, 149—151
High Court meaning of, 150, note

" High Court or any other Court," 150,

note (w)
Courts of final appellate jurisdiction, 150,

note (w)

" from any, decree " certified to be fit for appeal,
150, note (<c)

INDEX. 489

BEITISH INDIA— continue*!.

III. Kules in appeals from British India to Privy Council— continued.
rules of Code of Civil Procedure as to — continued.

decrees from which appeals lie — continued.
value of subject-matter, 151, 152

meaning of subject-matter of suit, 151, note
appealable amount under Letters Patent, 151,

note

cross appeal, 151, note

appeal from decree affirming Court below must
involve substantial question of law, 152, 153,
and notes

bar of certain appeals, 153, 154, and notes
prerogative preserved, 154, 155
power to make rules, 155
special leave, how applied for, 154, note (d)
criminal appeals, 155, note (e), and 156
divorce appeals, 156, note
Admiralty and Prize Courts appeals, 156, note,

370
Order XLV., rules of appeal, 156 ff.

application to Court whose decree complained of, 156
certificate as to value or fitness, 157 and notes
form of objection to grant, 157, note
consolidation of suits, 158
dispute as to grant of certificate, 158
effect of refusal of certificate, 158, 159

special leave to appeal, 158
security and deposit required on grant of certi-
ficate, 159, 160

time for giving security, etc., 159, note
admission of appeal and procedure thereon, 160
printing of transcript, 160, note
setting appeal down for hearing, 160, note
preliminary objections, 160, note
revocation of acceptance of security, 160 v
power to order further security or payment,

161

effect of failure to comply with order, 161
refund of balance of deposit, 161
powers of Court pending appeal, 161, 162

execution or security pending appeal, 162
stay of execution where special leave, 162, note
increase of security found inadequate, 163
procedure to enforce orders of Privy Council, 163, 164
execution of Sovereign's orders, 163, note

mesne profits, 164, note
appeal against order relating to execution, 164

IV. High Court Rules as to appeals,

Bombay, 165—167

Calcutta, 167—172

Madras, 172— 176

North West Provinces, 176 — 180

The Punjab, 180—183

490

INDEX.

BRITISH NEW GUINEA,

Courts of Justice (Order in Council, 17 May, 1888), 74

appeal from Central Court to Australia High Court, 74
thence to Privy Council, 74

BRITISH SETTLEMENTS ACT. 1SS7,
provisions of, 14, 15

BRUNEI,

grant of jurisdiction to consular officers, 136
Appeal to Straits Settlements, 136
See STRAITS SETTLEMENTS.

BURMA. See BRITISH INDIA.

CALCUTTA,

rules as to appeals. 167—169

CAMBRIDGE. UNIVERSITY OF,
universities committee. 249, 250

CANADA.. DOMINION OF,
history, 38
laws, 38

provinces of, 39

Newfoundland, power to admit, into Dominion, 39
constitution of provincial legislatures and Courts, 39
Supreme Court of Dominion, 39

no appeal as of right from Supreme Court to Crown, but

prerogative preserved, 40, 43, 44
special leave to appeal to Privy Council, 366
additional Courts, 366

controverted elections. 366

no appeal to Privy Council, 366
appeals to Supreme Court of, 40 ff.

from final judgment of provincial Court, 40
judgment on special case. 41
judgment upon points reserved, 41
judgment upon motion for new trial, 41
judgment, rule, etc.. on motion to set aside award. 41
judgment in proceedings on habeas corpus, mandamus

and municipal bye-law.-, 41

appeals to be from highest Court of last resort. 42
appeal by leave of Court or Judge, 42

appeal from judgment in Quebec, in what cases shall lie, 42
appeal from Ontario, 43

reference of constitutional questions, 44, 45
appeal, 45

special leave, when granted, 45, note (c)
petition for special leave to appeal, 46, 47

grounds for permitting, 46, 47
alternative appeals, practice where, 47, 48
appeal in criminal case, 49
habeas corpus case, 50
railway case. 50
Exchequer Court, 48

appeal from Colonial Court of Admiralty, 49

INDEX. 491

CAPE OF GOOD HOPE. See SOUTH AFRICA, Uxiox OF.
CAROLINE AND PELLEW ISLANDS. See PACIFIC OCEAN.

CASE, THE,

rules for printing in colon}', 32, 33

preparation of, 285

lodging, 286

contents of, 286

printing,

notice to other side, 288, 289

ig down, 290
exchange of, 290
binding of, 291

CAVEAT,

lodging, 201, 265

TAN ISLANDS. See JAMAICA.
CENTRAL AFRICA PROTECTORATE, BRITISH. See NYASSA-

LAND.

VTRAL PROVINCES (INDIA). See BRITISH IXDIA.

CEYLON, 183—191
history, 183

Supreme Court, creation of, 183
appeal from Supreme Court to Sovereign, 183
rules for appeals to Sovereign in Council, 183 — 191
appealable amount, 183
provision as to security, 184
application to Supreme Court, 183
Rules under Order 1910... 186— 191
notices, how served, 186
appointment of proctors, 186
deposit to meet costs, 186, 187
procedure if conditions not complied with, 187
substitution of parties, 188
schedule of fees, 188, 189
applications to enlarge time, 188
forms of petition, etc., 189—191
judgment of Privy Council, how enforced, 185

order enforcing judgment of Privy Council, how far

appealable, 185
power to make rules, 185

CHANNEL ISLANDS. See JERSEY and GUERNSEY.
claim of customary right to appeal to Sovereign, 2

Guernsey Order in Council, 1580, and Letter, 1605... 4, 91

492 INDEX.

CHINA,

Courts established, 122
China and Japan Order in Council, 122
Corea, jurisdiction in, abandoned, 122
Japan, cesser of jurisdiction in, 122

appeal to His Majesty in Council, 122

CHURCH DISCIPLINE ACT, 1840. See ECCLESIASTICAL COURTS,
APPEALS FROM.

CINQUE PORTS,

Court of Admiralty of, appeals from, 362

CLERGY DISCIPLINE ACT, 1892. See ECCLESIASTICAL COURTS,
APPEALS FROM.

CLERK OF PRIVY COUNCIL,

appointment of, to take proofs in matters referred to Judicial
Committee, 437

COCOS ISLANDS. See STRAITS SETTLEMENTS.
Colonial Appeal Rules, 2 Iff.

COLONIAL COURTS OF ADMIRALTY,

jurisidiction in prize in. See PRIZE COURTS, APPEALS FROM.
appeals from, to Privy Council. See ADMIRALTY APPEALS.

COLONIAL COURTS OF ADMIRALTY ACT, 1890,
provisions of , 13, 363

local Admiralty appeal, 363
Admiralty appeal to Sovereign in Council, 363
conditions of appeal, 363

powers of Judicial Committee as to enforcing judg-
ments, etc., 364

effect of Orders of Privy Council or Judicial Com-
mittee, 365
Rules of Court, 365, 366

COLONIAL JUDGES,

provision as to, being members of Judicial Committee (Judicial

Committee Amendment Act, 189 5). ..16, 17
provision as to being assessors of Judicial Committee, 1 7
special reference to Privy Council as to precedence of, 245

" COMMITTEE FOR TRADE,"

appointment of (Order in Council, 12 Feb., 1667)... 51
to hear Jersey and Guernsey appeals, 51

COMMONWEALTH OF AUSTRALIA. See AUSTRALASIA.

CONGO,

appeal from, to Supreme Court of Gold Coast, 106

CONSENT PETITION, 260

CONSOLIDATION OF APPEALS,

in Colony, 28

in Privy Council, 284, 285
COORG. See BRITISH INDIA.

INDEX. 493

jurisdiction of Judicial Committee (under 1 & 2 Geo. V. c. 46)
as to republication of book, etc., 9, 10

COREA. See CHIXA.

COSTS,

in Colony. 33, 330

power of Judicial Committee, as to, 325, 326

scales of costs on taxation, 326—328
Judicial Committee, taxation of, rules as to, 328, 329
regulations as to, 329—331

agency not recognised, 330

form of Bills, 330

basis of taxation, 330

costs in Colonial Court, 330, 331

costs before petition of appeal lodges, 331

intervention, 314
dealt with in decree, 331
should be asked for at the hearing, 331
discretion of Judicial Committee as to, absolute, 332

exercise of, where appellant successful, 332

where new trial with new pleadings ordered, 333
where appellant unsuccessful, 333

each party to pay own costs, 334

further evidence on appeal, 334

case fairly open to doubt, 334

decree affirmed, damages altered, 334, 335

costs out of estate, when, 335

new trial, 335

contempt of Court, 335

leave ex parte -wrongly given, 336

appellant becoming insolvent, 336

pauper costs, 336

costs against Crown, 336, 337

constitutional questions, 337

separate cases, same interest, one set of costs, 337, 338

several respondents, 338

counsel, costs of three, 338

set-off of, 338

irrelevant matter, of, disallowed, 338
Judicial Committee o'rder as to, 339

enforcing, 339, 340

no interest payable on refunding, 337
appeal as to, in what cases, 337

COUNSEL,

number of, at hearing of petition, 261

of appeal, 313

bar of Privy Council open to all, 313, 314
cases to be drawn by, 286
And see HEARING'OF APPEAL.

494 INDEX.

CRIMINAL APPEAL,

from Canada, qucere whether lies, 49, 50
from Jersey, qucere whether lies, 96, 97
from India, when it lies, 155, 156, and note

CRIMINAL CASES,

appeal by special leave in. See APPEAL BY SPECIAL LEAVE, IV.

CROSS-APPEALS, 279—280.

CYPRUS,

jurisdiction of Crown in, 125, 126

Supreme Court, establishment of, 126

Supremo Court a Colonial Court of Admiralty, 126

appeal from Supreme Court, 126

rules in Admiralty Appeals, 371

DECREES,

of Judicial Committee to be enrolled (3 & 4 Will. IV. c. 41), 353
power of enforcing, 354
finality of, 354
amendment of, 355

DELEGATES, HIGH COURT OF,
origin of, 4
transfer of powers of, both1 in ecclesiastical and maritime causes, to

Privy Council (2 & 3 Will. IV. c. 92), 7
repeal of 8 Eliz. c. 5... 7

DEMERARA. See BRITISH GUIANA.

DISMISSAL WITHOUT HEARING,
in colony, 30

for non-prosecution, 31
in Privy Council, 292—300

for non-prosecution after appearance, 293, 295

after lodgment of petition of appeal, 294

costs of respondent, 295, 296

application to extend time, 296
death of appellant, 296
in cases of special leave, 296
dismissal affected by consolidation, 297
laches in objecting, 297
restoration of appeal, 297

where decree affirmed on ex parte hearing, 298
where fresh security, 298
when appeal out of time, 299
counter-petition to rescind leave to appeal, 298
dismissal where leave obtained by misrepresentation, 298, 299
misapprehension should be corrected, 300
respondent's duty as to incompetent appeal, 300
right of next friend after coming of age of infant, 300

IXDKX. 495

DOLEANCE,

petition of, 255. And see JERSEY, GUERNSEY.

EAST AFRICA PROTECTORATES,

what comprised in, 110

charter to Imperial British East Africa Company, 119

Court of Appeal of, 119

appeal to Privy Council, 119

EAST INDIA COMPANY,

power for Crown to establish Supreme Court at Fort William, 6
appeal to King in Council, 6

ECCLESIASTICAL APPEALS,

Rome, appeals to, prohibited by 24 Hen. VIII. (1532) c. 12.. .3

provisions of 25 Hen. VIII. c. 19, as to, 3

provisions of Judicial Committee Act, 1843, as to, 431 — 435

powers of Judicial Committee in ecclesiastical appeals, 431
punishment of contempts, 432, 439
inhibitions, etc. to be in Sovereign's name, 433

in force throughout dominions, 433
reference of all ecclesiastical appeals to Judicial Committee,

433

award of costs, 434

Judicial Committee empowered to make rules as to procedure,
435

ECCLESIASTICAL COURTS, APPEALS FROM, 397 ff.
Ecclesiastical Courts, creation of, 397
High Court of Delegates, 397

transfer of jurisdiction to Judicial Committee, 397, 398
ordinary Ecclesiastical Courts; what are, 398

Provincial Courts of Arcnbishops, appeals from, 398, 399
Church Discipline Act, 1840, appeals under, 400
Clergy Discipline Act, 1892, appeals under, 400

election of appellate Court, 400

Public Worship Regulation Act, 1874, appeals under, 400
Channel Islands, appeal from, to Bishop of Winchester,

400
appeals, time limit for, general rule as to, 400, 401

special rules under different statutes, 401
rules of appeal in Privy Council, 401, 402

See RULES OF APPEAL IN PRIZE, ETC., APPEALS, s.v.

PRIZE COURTS APPEAL.
right of appeal,

Clergy Discipline Act, 1892... 402, 403
Public Worship Regulation Act, 1874... 403
Benefices Act, 1898... 403, 404

registrar, 403
general practice under 3 & 4 Will. IV. c. 41, application

of, 404

proceedings on appeal in Appellate Court, 404
inhibition, 404, 405

remission of cause to Court below, 405
retention of principal cause by Judicial Committee, 405

496 INDEX.

ECCLESIASTICAL COURTS, APPEALS FROM— continued.
. Ecclesiastical Courts in Colonies, appeal from, 406, 407
Rules under Appellate Jurisdiction Act, 1876... 407
bishops to attend as assessors, 407, 408

three assessors to be present at hearing, 408
Rules under Church Disciplne Act, 1840... 408
appeal to be prosecuted within one month, 408
substituting promoter, 303
Rules under Public Worship Regulation Act, 1874 (Order in

Council, 22 Feb., 1879), 409
appeal to be asserted within fifteen days. 409

appeal from judgment or monition, form of, 409, note
suspension, pending appeal, of execution of monition, 410

praecipe for, form of, 410, note
Rules under Clergy Discipline Act, 1892... 41 1—417
time for appeal on matter of law, 411

notice of appeal, form of, 413
time for petition to appeal on facts, 411

petition for leave to appeal on facts, form of, 414
application for leave to appeal from interlocutory judgment,

411
time for appeal where leave given, 411

notice of appeal where leave given, 414
notice of appeal, mode of giving, 411
lodging petition to appeal, 411
hearing of petition for leave to appeal, 412

notice of adjournment of hearing, 415
hearing of appeal in respect of facts, 412
evidence in Appellate Court, special provisions as to, 412
setting down appeal for hearing, 412

notice of appeal being set down, form of, 416
notice of time and place for hearing appeal, 412
remission of case to Consistory Court, 412, 413
notice to registrar of diocese of order on appeal, 413
written statement of case not necessary, 413

EGYPT. See TURKEY.

ENDOWED SCHOOLS ACT, 1869, 251

And see SPECIAL REFERENCE.
procedure for making schemes, 251
appeal to Privy Council, 251, 252
provisions as to appeal, 252

EVIDENCE,

new, in matters referred to Judicial Committee, 289
when admitted, 289
Commissioners to take, 289
And see HEARING OF APPEAL.

EX PARTE HEARING, 290. 'And see HEARING OF APPEAL.

EXECUTION,

suspension of in colony, on granting leave to appeal, 26
where special leave granted, 235, 236

INDEX. 497

FALKLAND ISLANDS,
a settled colony, 105
Supreme Court of, 106
appeals to Privy Council from, 106

FEES,

allowance to solicitors, 326

Council Office fees, 327, 328

on hearing appeals in Prize causes, 380

FEIGNED ISSUES,

Judicial Committee may direct (3 & 4 Will. IV. c. 41), 35

FIJI,

history, 82

Supreme Court, constitution of, 82

appeals fr»m Supreme Court of, 82

FOREIGN JURISDICTION,

right to exercise, in what cases, 13
Foreign Jurisdiction Act, 1890... 14
Africa Protectorate, 117, 118

appeal to Privy Council under, 14

Northern Nigeria, 118

Congo Free State Protectorate, 118

East Africa, Uganda and Nvassaland Protectorate, 119

Northern Rhodesia, 119, 120

Barotziland — North-Western Rhodesia, 120
Brunei, 136
China, 122
Cyprus, 125, 126
Egypt, 127

India Native States, 143
Lagos Protectorate, 109
Malay States, Federated, 122, 123
Morocco, 121, 122
Muscat, 123
Nigeria, Northern, 118
Pacific Ocean (Polynesia), 129, 130
Persia, 123

Persian Coast and Islands, 124
Sarawak, 124
Siam, 125

Sierra Leone Protectorate, 109
Somali Coast Protectorate, 120
Turkey, 126—129
Zanzibar, 121

FOREIGN JURISDICTION ACT, 1890,
provisions of, 14

exercise of jurisdiction in foreign country, 14

exercise of jurisdiction over British subjects in countries

without regular governments, 14
power to assign jurisdiction to British Courts in cases within

Foreign Jurisdiction Act, 14
appeals, Privy Council, 15

p.c. 32

498 INDEX.

FORMA PAUPERIS.

petitions and appeals in. See APPEAL BY SPECIAL LEAVE, III.

FORMS FOR USE IN APPEALS,

petition for special leave to appeal, 470

petition of appeal, 472

petition of revivor, 473

petition to consolidate appeal, 474

petition to withdraw appeal, 474

case notice, 475

GAMBIA. See SIERRA LEONE.

GIBRALTAR,
a colony, 102
Supreme Court of, 102

a Colonial Court of Admiralty, 102
appeals from, 102, 103

appeals from Supreme Court as Colonial Court of Admiralty,
370

GOLD COAST, THE,
a colony, 106

appeal from Supreme Court of, to Privy Council, 106
jurisdiction over adjacent territories, 106
Appeal Court from Congo, 106

GRENADA,

history, 116

constitution of Supreme Court of, 116
Court of Appeal. See WINDWARD ISLANDS.
right of appeal to Sovereign, 116

GUERNSEY,

history of, 97

Alderney, Sark, Jethou, and Herm, dependencies of, 97
Royal Court, 97

appeal to, from Alderney and Sark, 97
appeal from, to Sovereign in Council, 98
Orders in Council as to appeals from, 98, 99
security in appeals, 100
no appeal in criminal case, 100

HEARING OF APPEAL,

Judicial Committee of Privy Council, constitution of, 311

notice of commencement of sittings, setting down, 312

notice of day for hearing, 312
ex parte hearings, 290, 312, 313

parties to have opportunity of attending, 313

necessity for printed case, 313

INDEX. 499

HEAEIXG OF APPEAL— contin vol.
counsel, number of, heard, 313

not affected by consolidation, 314
intervention, 314

interveners heard, 314

when appeal part heard, 314

costs of, 314

argument at hearing, 314, 315
case re-argued, 315

costs where, 315

Privy Council not a Court of first instance, 315, 316
new argument, 316
case remitted, 317
points not raised below, 317, 318

objections founded on fact, 318

on law, 318, 319

formal objections, 319, 320
change in Imperial Statute Law not on the record, 321

Colonial Statute Law not on the record, 321
original documents may be called for, 322
evidence,

impeached documents, 322

reference to Court below as to practice, 322

as to facts which could not be before Court below, 322

Judicial Committee, power of, to take, 289, 323

not given below, 323

cases remitted for, 323

Judicial Committee may refer question, 323
interlocutory order, appeal from, 324
alteration in order by Court below after appeal presented, 324

HERM. See GUERNSEY.

HONG KONG,
history, 107

Supreme Court, creation of, 107
Kowloon on mainland, now part of, 107
rules of appeal from, to Privy Council, 107

INDEX OF DOCUMENTS, 27, 269, 272.
form of, 478

INDIA. See BRITISH INDIA.

INDIA NATIVE STATES. See BRITISH INDIA.

IN FORMA PAUPERIS. See APPEALS BY SPECIAL LEAVE, III. and
COSTS.

INTEREST,

on judgment, when payable by respondent, 360
not payable on costs refunded, 337

INTERVENING IN APPEAL, 314

32—2

500 INDEX.

ISLE OF MAN,

included in terms " British Islands," 100

government and constitution of, 100

High Court created, 100

Staff of Government Division, 100

appeal from Courts of, to Crown, 101, 102
to be prosecuted within six months, 101
security for prosecuting appeal, 102

criminal appeals from, 102

JAMAICA,

history, 113
Supreme Court of, 113

a Colonial Court of Admiralty, 113

appeals from, to Privy Council, 114
Turk's and Caicos Islands annexed to, 113

JERSEY,

originally part of Duchy of Normandy, 91
origin of appeal to Sovereign in Council, 91
Royal Court of, 92

appeal from, to His Majesty in Council, 92
leave to appeal, 94
security to prosecute appeal, 93
duty of Greffier as to forwarding record to Registrar of

Privy Council, 94

procedure where leave to appeal refused, 95
doleance, 95
petition of doleance; 95

verified by affidavit, 96
no criminal appeal as of right, 96, 97
Rules of Appeals in Jersey Code, 1771. ..92, 93
ecclesiastical appeals to be heard by Bishop of Win-
chester, 96

JETHOU. See GUERNSEY.

JUDGES, REMOVAL OF,

subjects for special reference, 252
practice in such cases, 254
complaints against judges, 255
practice when petition for, 256

JUDGMENT OF COMMITTEE,
delivered in open Court, 341
notice of day fixed for delivery, 341
one judgment only delivered, 341, 342
decree reversed without prejudice to new application, 342
assessment of damages, 342, 351

remission with declaration as to rights or expression of opinions,
312, 343

IXDEX. 501

JUDGMENT OF COMMITTEE— continued.
new trials, 343—346

what law applies, 343

motion first to Court below, 344

Judicial Committee may enter judgment on the facts, 344

misdirection, 344, 345

non-direction, 345

rejection of immaterial evidence, 345

verdict disapproved by Judge below, 346

verdict against evidence, 346

Judicial Committee will generally uphold findings on facts,
346, 347

concurrent judgments of Courts below, 347 — 349
general rule, 347
rule is not exclusive, 348

Judicial Committee form independent opinions, 349
admission of secondary evidence, 349
nature of concurrence required, 350
interference with judicial discretion, 350
adding interest to damages, 351
recommendation by Judicial Committee, 351
practice in Court below not interfered with, 351
minutes of judgment, 351, 352

respondent seeking to appear after judgment, 352
report of Judicial Committee to Sovereign, 352, 353

Order in Council, 353
decrees to be enrolled, 353
copy of Order in Council as evidence, 353
decree by consent, 354

enforcement of Order in Council by colonial tribunal, 33, 354
finality of decree as to third parties, 354

binding effect of previous decisions, 355
laws to be applied to execution of decree, 355
amendment of judgment of Committee after decree, 355,

356

revocation of decree of Sovereign, 356
interpretation of judgments, 356, 357
rectification of judgments, 357
re-hearing, 357—359

mistake in decree, 358

power to rectify, 358

inadvertent inaccuracies, 359

varying order, 359, 360

money paid pending appeal bears interest, 360
refusal to carry Sovereign's decree into execution, 360, 361

supplemental appeal, 361

duty of subordinate tribunal to execute Sovereign's decree,
361

JUDICIAL COMMITTEE OF PRIVY COUNCIL,
creation of, 7
constitution of (3 & 4 Will. IV. c. 41), 8

changes in constitution of, 10, 11, 16, 17

formation and style of Committee, 31

502 INDEX.

JUDICIAL COMMITTEE OF PEIVY COUNCIL— continued.
constitution of (3 & 4 Will. IV. c. 41) — continued.

appeals to King in Council from sentence of any Judge, etc.,
to be referred to Committee to report on, 8, 9, 421

reference of other matters to Committee, 8, 422

evidence may be viva voce or on written depositions, 423

Committee may order attendance of witnesses, 423

witnesses to be examined on oath, 424

Committee may direct feigned issues, 424

costs to be in discretion of Committee, 425

decrees to be enrolled, 426

reference of matters to registrar, 426

subpoena to compel attendance of witnesses and production
of papers, etc., 426

time of appealing, 427

decrees to be carried into effect, 427

power of enforcing decrees, 428

two retired Indian or colonial Judges attending Judicial
Committee to receive allowance, 429

saving as to treaties with foreign countries appointing cer-
tain persons to hear prize appeals, 429
provisions of Judicial Committee Act, 1843. .. 430 ff.

hearing by not less than three members of Judicial Com-
mittee, 430

powers in respect of appeals from Ecclesiastical Courts, 431

punishing contempts, etc., 432

inhibitions, etc., 433

monitions for payments into Admiralty Registry, 433

ecclesiastical appeals may be referred to Judicial Committee,
433, 434

costs, award of, by Judicial Committee, 434
provisions of Judicial Committee Act, 1844, as to, 10, 436 ff.

Order in Council admitting appeals from Colonial Courts not
of error or appeal, 10, 436, 437

appointment of clerk of Privy Council to take proofs in
matters referred to Judicial Committee, 437

power of Judicial Committee to hear appeals without special
order of reference, 438

Judicial Committee may require copies of notes of evidence,
etc., 438

punishment of persons neglecting to comply with order in
ecclesiastical causes, 439

JUDICIAL COMMITTEE, RULES OF,
appeal by special leave, 207
practice as to petitions, 257
steps before hearing, 262 ff .

non-prosecution of appeal, 293 ff.
withdrawal of appeal, 300 ff.
revivor of appeal, 301 ff.
hearing of appeal, 312 ff.
costs, 326 ff.

in pauper's case, 336
And see APPENDIX B.

INDEX. 503

JUDICIAL COMMITTEE AMENDMENT ACT, 1895,

provisions as to Colonial Chief Justices or Judges being members
of Judicial Committee, 16

"JURISDICTION." See JUDICIAL COMMITTEE.

LABUAN. See STRAITS SETTLEMENTS.
LAGOS. See SOUTHERN NIGERIA.

LEAVE TO APPEAL,

application for in Colonial Court, 25
conditional, 26

power to rescind in colony, 29
And see APPEAL BY SPECIAL LEAVE.

LEEWARD ISLANDS,

what comprised in, 114
a Federal Colony, 114
Supreme Court of, 114

appeal from, to Privy Council, 114

LODGING CASE, 286 ff.
notice of, 288

LODGING PETITION OF APPEAL, 277 ff.

MADRAS,

High Court of, creation of. See BRITISH INDIA.
rules as to appeals under Code of Civil Procedure, 172 ff.

MALACCA. See STRAITS SETTLEMENTS.

MALAY STATES, FEDERATED,

agreement with Her Majesty's Government, 122

Appeal Court jurisdiction, 123
appeal from to Sovereign, 123

MALTA,

Courts of, 103

appeals from Court of Appeal of Malta, 103

provisions as to sending translation of record to Privy
Council, 103, 104

MAN, ISLE OF. See ISLE OF MAN.

MANITOBA,

Province of, how created, 52

Supreme Court of, constitution, title and jurisdiction of, 52

appeals from Supreme Court of, to Privy Council, 52

MAURITIUS,
history, 107

Supreme Court, creation of, 107
Seychelles, a dependency of, 108
appeals from, 108

504 INDEX.

MISDIRECTION. See JUDGMENT.

MONITIONS,

for payment into Admiralty registry, 433
form of, 390

MOROCCO,

foreign jurisdiction in, 121

provisions of Morocco Order in Council, 1889... 121

appeal in civil cases from Court for Morocco to Supreme

Court of Gibraltar, 122
thence to Privy Council, 122

MUSCAT,

foreign jurisdiction in, 123

appeal from, to High Court of Bombay, 123
appeal to Sovereign by special leave, 123

NATAL. See SOUTH AFRICA, UNION OF.

NATIVE STATES (INDIA). See BRITISH INDIA, II.

NEVIS. See LEEWARD ISLANDS.

NEW' BRUNSWICK,

province of the Dominion of Canada, 52
rules of appeal from, to Privy Council, 52

NEWFOUNDLAND,

history and constitution of, 64
Supreme Court, 64

appeal to Privy Council, 64

NEW HEBRIDES. See PACIFIC ISLANDS.
joint Court, 130

NEW SOUTH WALES,

Supreme Court established by Letters Patent, 75

appeal from Supreme Court to Privy Council, 75
Admiralty Court, 75
criminal appeals, prerogative of Crown as to, 75

NEW TRIAL. See JUDGMENT.

NEW ZEALAND

Supreme Court, establishment and jurisdiction of, 75

Native Appellate Court,

appeal to, from Native Land Court, 76

appeal from, to Privy Council by special leave, 76

appeal from Supreme Court to Privy Council, 76, 77

Court of Appeal of, appeal from, to Privy Council, 76
appeal in bankruptcy, 77, note

NIGERIA, NORTHERN,

Supreme Court of, 118

appeals from, 118

INDEX. 505

NIGERIA, SOUTHERN. -See SOUTHERN NIGERIA.

NON-APPEARANCE OF RESPONDENT,
procedure on, 282—284

NORTH WEST PROVINCES (INDIA),

High Court of, creation of. See BRITISH INDIA.
rules as to appeals under C. C. P., 176 ff.

NORTH WEST TERRITORIES. See ALBERTA and SASKATCHEWAN.

NOYA SCOTIA,

a province of the Dominion of Canada, 53

Supreme Court of, constitution and jurisdiction of, 53

appeal from Supreme Court of, to Privy Council, 53

NY ASS ALAND. See EAST AFRICA PROTECTORATE.

ONTARIO (UPPER CANADA),
history, 53

appeal from Court of Appeal to Privy Council, 53
special provisions as to appeal to Privy Council in constitutional

and other provincial questions, 56
appeals to Privy Council,

provisions of local Act, 53
appealable value, 54
no leave necessary, 54, note
security by appellant, 54, 56

stay of execution, rules as to, 54, 55
costs, 56

ORANGE RIVER COLONY. See SOUTH AFRICA, UNION OF.

OTTOMAN EUTIRE. See TURKEY.

OUDH. See BRITISH INDIA.

OXFORD, UNIVERSITY OF. See UNIVERSITIES.

PACIFIC ISLANDS (POLYNESIA),
origin of jurisdiction in, 129
Pacific Ocean Order in Council, 1893. ..129
High Court, 129

High Court a Colonial Court of Admiralty, 129
appeal to Court of Appeal, 130

thence to Sovereign, 130
New Hebrides, how far order applies to, 130

PAPUA. See BRITISH NEW GUINEA.

PARTIES,

substitution of by Colonial Court, 31, 32, 305 £f.

506 INDEX.

PATENT, LETTERS,

jurisdiction of Privy Council with regard to, abolished, 9

PENANG. See STRAITS SETTLEMENTS.

PERSIA,

jurisdiction in, 123

Courts constituted, 123
appeal to Sovereign, 124

PERSIAN COAST AND ISLANDS,
jurisdiction in, 124

application of law of British India, 124
appeal to High Court of Bombay, 124
thence to Sovereign, 124
Colonial Court of Admiralty, 124

PETITION,

rules as to, 257—261

forms of, for special leave. See APPEAL BY SPECIAL LEAVE.

in forma pauperis. See APPEAL BY SPECIAL LEAVE, III.

how addressed, 257

service of, 256

verification by affidavit, 258, 259

setting down, 259
notice of day of hearing, 260

withdrawal of, 260
where hearing unduly delayed, 261
See SPECIAL REFERENCE ; APPEAL BY SPECIAL LEAVE ; and

STEPS BEFORE HEARING.

PETITION OF APPEAL,

time for lodging, 278, 279

jurisdiction of Privy Council before lodging, 278

form of, 280

lodging, 281

service of, 281

POLYNESIA. See PACIFIC OCEAN.

PRINCE EDWARD ISLAND,

a province of the Dominion of Canada, 57
Supreme Court of, power of, to make rules of procedure, 57
appeal from to Privy Council, 57

PRINTED CASE,

time for lodging, 286, 287

PRINTING,

regulations as to, of cases, records, etc., 267, 268, 275

PRIVY COUNCIL, ORIGIN OF,
province of, 1 — 4

507

PRIVY COUNCIL, ORIGIN OV— continued.
regulation of, by 16 Car. I. c. 10... 4
And see JUDICIAL COMMITTEE OF PRIVY COUNCIL.

PRIZE AND ECCLESIASTICAL APPEALS,
rules of appeal in, 374 ff.
solicitors entitled to practise, 374
petition of appeal, 375
form of, 381

appeal against action, 375, note
inhibition, etc., 375
form of, 381
dismissal of, 375
service of, 376
return of, 376
relaxation of, 378
appearance by respondent, 376
adhesion by respondent, 377

by non-appellant party, 376, note
form of, 383, 384

form of, 384
printing appendix, 377
appellant's case, 377
respondent's case, 377

security by appellant out of kingdom, 377
proxy, 378

of abandonment, 378

forms of, 387
costs, 378

reinstatement of appeal, 378
remission of cause, 379

form of, 389
pleading specially, 379
references to registrar, 379
attachment or sequestration, 379, 380

forms of, 390—396
form of bail bond, 384, 385
form of monition for payment, 390

PRIZE COURTS, APPEALS FROM,
practice in, 372 ff.

High Court in England, 372

appeal to Privy Council from, 372
appeal to Court of Appeal from, in what case, 372
suggested change in appellate tribunal, 372, note
Colonial Courts of Admiralty, jurisdiction in prize, 372, 373
Rules under Prize Courts Act, 1894, s. 2... 373
Rules of procedure in appeal, 373

inhibition, time for, High Court and Colonial Courts, 373
registrar in prize appeals, 373

enforcement by Admiralty Division of High Court of
decree in prize appeal, 374

PUBLIC WORSHIP REGULATION ACT, 1874,

appeals under. See ECCLESIASTICAL COURTS, APPEALS FROM.

508 INDEX.

PUNISHMENT

for disobedience to Order of Privy Council or Judicial Committee,
in ecclesiastical or maritime causes, 432
sequestration as for contempt, 439

PUNJAB, THE. See BRITISH INDIA.

rules as to appeals under Code of Civil Procedure, 180 ff.

QUEBEC (LOWER CANADA),
history, 57
Courts, 58

Code of Civil Procedure for, 57
appeals from, to Privy Council, 58

Code of Civil Procedure of 1897, provisions of, as to appeals, 58
appeals from interlocutory judgments, 58
appeal from King's Bench to Privy Council, in what cases,

59, 60
no stay of execution except on security by appellant,

61, 62
security for costs in appeal only where judgment

executed, 62
no stay after six months unless Privy Council

certificate lodged, 63

exemplification of Privy Council decree to be registered
by clerk of Court rendering the judgment, 63

QUEENSLAND,

Supreme Court of, creation and jurisdiction of, 77, 78

constitutional questions, 78

divorce appeals, 78

appeals from Supreme Court of, to Privy Council, 78
appeals to, from British New Guinea. See BRITISH NEW GUINEA.

REASONS FOR JUDGMENT,

Colonial and Foreign Settlement Judges to give written, 28

registrar to send transcript of to Registrar of Privy Council,
269

RECORD,

preparation of in colony, 27, 28, 267, 268

transmission of, 267, 268

reasons for judgment, 269

exclusion of unnecessary documents, 269

documents objected to to be indicated, 269

amendment of, 270

registration and numbering, 270

addition to, 271

time within which copy must be bespoken, 274, 275

preparation of for printer, 275

examining proof of, 276

cost of preparing, 276

supplementary, 281

binding, 291

INDEX. 509

RECTIFICATION OF JUDGMENT. See JUDGMENT.

REGISTRAR OF PRIVY COUNCIL,

reference of matters to (3 & 4 Will. IV. c. 41), 426
power to examine witnesses on oath, 440
President of Privy Council may appoint deputy, 440
powers in Admiralty and ecclesiastical cases, 403

RE-HEARING. See JUDGMENT.

RESIDENTS' COURTS (INDIA). See BRITISH INDIA.

RESTORATION OF APPEAL. See ABATEMENT.

REVIVOR OF APPEAL,

petition of, when acquired, 32, 305 ff.
See ABATEMENT and REVIVOR.

RHODESIA, NORTH EASTERN. See NORTHERN RHODESIA.

RHODESIA, NORTH WESTERN,
appeals from, 120

RHODESIA, NORTHERN,
jurisdiction in, 119, 120
appeal from High Court to Privy Council, 120

ST. CHRISTOPHER. See LEEWARD ISLANDS.

ST. HELENA,

history of, 110

Supreme Court of, 110

Colonial Courts of Admiralty Act, 1890, applied, 110

appeals to Privy Council, 110

ST. KITTS. See LEEWARD ISLANDS.

ST. LUCIA,

history, 116

Royal Court of, 116

appeal to Privy Council, 117

appeal from Royal Court to Court of Appeal for Windward

Islands, 117
rules of appeal from, to Privy Council, 117

And see WINDWARD ISLANDS.

ST. VINCENT,

history and constitution of colony, 117
Supreme Court of, 117
appeal to Privy Council, 117

appeal to Court of Appeal of Windward Islands, 117
And see WINDWARD ISLANDS.

SAMOA. See PACIFIC OCEAN.

SANTA CRUZ ISLANDS. See PACIFIC OCEAN.

510 INDEX.

SARAWAK,

an independent State under the protection of Great Britain, 124

jurisdiction of His Majesty in Sarawak, 125
appeal to Sovereign by petition through Secretary of State, 125

SARK. See GUERNSEY.

SASKATCHEWAN,

appeals from, 63, 64

SCHEDULED DISTRICTS. See BRITISH INDIA.

SCOTCH SOLICITOR,

right of, to practise in Privy Council, 469

SCOTTISH UNIVERSITIES COMMITTEE,

constitution of, by Universities (Scotland) Act, 1889... 250

SECURITY,

to prosecute appeals (Colonial Appeal Rules as to), 25, 26

in Indian appeals, 59, 160
discretion of Colonial Court as to, 204
when special leave to appeal, 234, 236, 237
in Admiralty appeals, 369

SEQUESTRATION,

for disobedience to order of Privy Council or Judicial Committee
in ecclesiastical or maritime causes, 439

SETTING DOWN CASE IN LIST, 290, 291

SEYCHELLES. See MAURITIUS.
appeal from Supreme Court, 108

SHANGHAI,

Supreme Court of. See CHINA.

SIAM,

jurisdiction of His Majesty in, 125

appeal from full Court to Sovereign, 125

SIERRA LEONE,

history of, 108

Supreme Court of,

a Court of original jurisdiction for the colony, 108
also the Appeal Court from Supreme Court of Gambia, 109
appeals from, to Privy Council, 109

SIERRA LEONE PROTECTORATE. See SIERRA LEONE.
SINGAPORE. See STRAITS SETTLEMENTS.

SOLICITORS,

admission of, to practise before Privy Council, 468, 469
declaration by, 469

SOLOMON ISLANDS. See PACIFIC OCEAN.

INDEX. 511

SOMALI COAST PROTECTORATE,
Somaliland Order in Council, 120
appeal to Sovereign in Council, 120, 121

SOUTH AFRICA, UNION OF,

history, 82, 83

restriction of right of appeal, 83

judicature, 83, 84

Supreme Court, 84, 85

appellate division, 85

appeals from, 85, 86, 87

Admiralty appeals, 88

rules of appeal, 88

extension of Union, 88

SOUTH AUSTRALIA,

Supreme Court of, establishment and jurisdiction of, 77

Court of Appeals obsolete, 79

appeals from Supreme Court to Privy Council, 79

SOUTHERN NIGERIA,
history of, 109
Supreme Court, 109
appeal from to Privy Council, 109
Colonial Court of Admiralty, 110

SPECIAL CASE,
submitting, 277

SPECIAL LEAVE, APPEAL BY. See APPEAL BY SPECIAL LEAVE.

SPECIAL REFERENCE, 239—256
appeal by, 239
matters the subject of, 239
order of special reference, 240
terms of special reference, 240
Court not necessarily an open one, 241
award of non-judicial officer, 241, 242
recall of legislative Orders in Council, 242

report of Committee advising revocation, 242
petition asking Royal confirmation of Act to be withheld, 242, 243
constitutional questions between legislative bodies, 243
petition for cancelment of Rules of Court, 244
severance of colony having responsible government, 244
intercolonial differences, 244, 245
interpretation of treaties, 245
petition by foreigner within dominions, 246
review of decision of Court with special jurisdiction, 246, 247
ecclesiastical disputes, 247
sentence of court-martial, 247
interference of executive with Judge, 247
conduct of officers of Court, 247
admission to practise as advocate, 247
fine for contempt of Court, 247, 248
questions of precedence of colonial Judges, 248
disregard of prerogative writs by Court in Jersey, 248, 249

512 INDEX.

SPECIAL REFERENCE— continued.

special references connected with public institutions, 249 — 252
Universities of Oxford and Cambridge, 249, 250
Durham University, 250
Scottish Universities Committee, 250
Irish Universities Committee, 250
Ecclesiastical Commissioners, schemes of, 251
Endowed Schools Act, 1869... 251, 252
municipal corporations, 252
amotion from office held during pleasure, 252
where suspension instead of amotion, 253
constitution of committee in special cases, 253
practice as to lodging cases in special references, 254
amotion of Judges, 254

special leave where special reference as to acts not strictly

judicial, 254

appeals in nature of complaints against Judges, 255
petition per doleance, 255
notice to Judges of Appeal from order suspending advocate,

255, 256
notice of charge against Judge, 256

evidence, 256

petition for removal of Judge, 256
order for removal, 256

STAFF OF GOVERNMENT DIVISION. See ISLE OF MAN.

STAR CHAMBER, COURT OF,
creation and constitution of, 3

not the same as Committee of Privy Council, 3
abolition of, 5

appeals to Privy Council unaffected by, 5

STEPS BEFORE HEARING,

assertion of appeal below, 262

appellant to see to preparation of transcript, 263

agent to subscribe declaration, 264

change of solicitor or agent, 265

caveat by respondent against grant of special leave, 265
agent to ascertain arrival of transcript, 266
application for further leave, 266
record, transmission of, 267
printing of, 267, 268

contents, 269

registration at Council Office, 270
amendment of documents, 270, 271
appearance, 272 ff.

time limit for printing and prosecuting appeal, 274 ff.
examining proofs of record, 276
costs of printing, 276
special case, submitting, 277
lodging of petition of appeal, 278 ff.
petition of appeal, form of, 280

service of, 281
respondent's appearance, 282 ff.

respondent failing to appear, 284

INDEX. 513

STEPS BEFOKE HEARING— continued.
consolidation of appeals, 284

where distinct suits, 285
the casex 285 ff.
need for lodging printed case, 286

form of, 287

case notice, 288

when case set down ex parte, 290
binding record, 291
setting down in list, 291
And see APPENDIX E.

STKAITS SETTLEMENTS,
what included in, 130
Courts established, 130

Supreme Court, 130
appeal to Sovereign, 130 ff.
in criminal cases, 136

in civil cases (Ordinance 2 of 1893), 131—136
when appeals lie to Privy Council, 131
appealable value, 131
application for leave to appeal, 131, 132

when Court of Ajppeal not sitting leave to
appeal may be given by Supreme Court, 132
procedure after grant of certificate, 132

admission of appeal and procedure thereon,

132

power to order further security, 133
power of Supreme Court pending appeal,

133

increase of security found inadequate, 134
preparation of record, 134, 135
procedure to enforce order of Privy

Council., 136
Supreme Court, Colonial Court of Admiralty, 136

SUBPCENA,

to compel attendance of witnesses and production of papers,
before Judicial Committee, 426

SUBSTITUTION,

of parties to appeal, 31, 32, 305 ff.

SWAZILAND,
Courts, 90
appeals to Privy Council, 91

TASMANIA,

Supreme Court of, establishment and jurisdiction of, 79, 80
appeal from Supreme Court to Privy Council, 79
special jurisdiction in land disputes, 80

TIME TABLE,

for appeals, Appendix E., p. 479, 480

p.c. 33

514 INDEX.

TOBAGO. -See TRINIDAD.

TRANSCRIPT. And see RECORD.
arrival of, 264, 266
transmission of, 266
appellant to see to preparation of, 267
preparation of, 268 — 271
documents not in, 271
delay in forwarding, 271, 272
index of, 272
access to, 272

TRANSVAAL, THE. See SOUTH AFRICA, UNION OF.

TRINIDAD,

history, 114

Supreme Court of Trinidad and Tobago, 115

appeal to Privy Council, 115

appeal in criminal cases, 115

TURKEY,

jurisdiction in, 120, 127

Foreign Jurisdiction Acts, 127
Admiralty jurisdiction, 129
appeal to Supreme Court, 127
appeal from Supreme Court to Privy Council, 127, 128

TURK'S AND CAICOS ISLANDS. See JAMAICA.
annexed to Jamaica, 113

UGANDA PROTECTORATE. See EAST AFRICA PROTECTORATE.

UNIVERSITIES,

special reference to Privy Council as to, 249 — 251

UNIVERSITIES COMMITTEES. See SPECIAL REFERENCE.

VICE-ADMIRALTY COURTS,
abolished, 365, 366

VICTORIA,

formerly part of New South Wales, 80

Supreme Court of, established by local legislature in 1852... 80
Colonial Courts of Admiralty Act, 1890, applied to, 81
appeal from Supreme Court to Privy Council, 80
two appealable limits, 81

provisions of Victorian Statute, 54 Viet. No. 1142 (1890), 81
appeal in certain cases amounting to 1,OOOZ., 81
effect of local statute, 81

VIRGIN ISLANDS. See LEEWARD ISLANDS.

WESTERN AUSTRALIA,
a settled colony, 81
Supreme Court of, establishment of, 81

appeal from, to Court of Appeal thereby established in certain

cases if no appeal lies to Privy Council, 81
appeal from, to Privy Council, 82

INDEX. 515

WINDWARD ISLANDS,
what comprised in, 115
Court of Appeal of, 115, 116

And see GRENADA, ST. LUCIA, ST. VINCENT and BARBADOS.

WITHDRAWAL OF APPEAL,
in colony, 29, 30, 301
in England before petition of appeal lodged, 301

after petition lodged, 302

where consent, 302
by compromise, 303
in ecclesiastical case, 303, 304

WITNESSES,

powers of Judicial Committee as to witnesses, 423—425
attendance of witnesses, enforcement of, 426

ZANZIBAR,

jurisdiction under Foreign Jurisdiction Act, 1890... 121
appeal to High Court of Bombay, 121
appeal to Sovereign, 121

BRADBURY, AGNEW, <fc CO. LD., PRINTERS. LONDON AND TONBRIDGE.

OVERDUE.

= . — -=

SEP « -|:

TSAf

2l-5m-6,'37

253463

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Texts

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

See other formats